Recorded jailhouse calls improperly obtained, SJC rules

While prosecutors were required to get judicial approval before they subpoenaed the tapes, their “procedural misstep’’ should not itself bar them from playing the tapes of John Odgren at his trial for the January 2007 slaying of 15-year-old James Alenson, the Supreme Judicial Court ruled.

The court overturned a Superior court judge’s decision that suppressed the tapes based on the error. It ordered the judge to hold hearings on defense claims that Odgren, who was a juvenile at the time of the slaying, has constitutional protections that would prohibit prosecutors from using the tapes.

“It’s a very important decision because it levels the playing field between the prosecution and the defendant in holding that the prosecutor cannot issue these subpoenas for information pretrial without getting court approval,’’ said Boston attorney Jonathan Shapiro, who represents Odgren, now 19.

The ruling also is significant because it has asked the Superior Court judge to consider whether Odgren’s constitutional rights were violated, meaning the high court may take a different view of juveniles than it does of adults when it comes to jailhouse calls, Shapiro said.

In a ruling last month, the Supreme Judicial Court found that prosecutors could subpoena telephone calls from jail made by inmates or those awaiting trial because they were clearly warned that all calls were recorded and had no reasonable expectation of privacy. Calls between inmates and their lawyers remain privileged.

In a statement issued yesterday, Middlesex District Attorney Gerard T. Leone Jr. said, “It continues to be our position that [Odgren] and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls, and we are confident that we will prevail in those efforts.’’

Odgren, then 16, was arrested Jan. 19, 2007, shortly after he allegedly used a 13-inch carving knife to stab Alenson, a freshman he did not know, in what authorities described as an unprovoked attack in a boys’ bathroom.

No trial date has been set.

Odgren’s lawyers have said he suffers from Asperger’s disorder, a mild form of autism, and should be found not guilty by reason of insanity.

To challenge the insanity defense, prosecutors subpoenaed more than 30 hours of tape-recorded calls between Odgren and his parents, brother, and friends in the six months after his arrest. The tapes, made while Odgren was held at the Plymouth County jail, include recordings of his outgoing calls and conversations with visitors who were separated from him by a clear partition and spoke via telephone. Prosecutors say the tapes show Odgren was coherent.

In last month’s ruling, the high court found that inmates know their jail calls are recorded and have the option of not talking on the phone if they don’t want conversations used against them. But Shapiro said Odgren didn’t have that option. Odgren could not have private conversations at the Plymouth jail because he was in a juvenile unit where visitors were required to talk to him through the glass partition on a recorded telephone line.

“The extent to which his privacy and the confidentiality of his communications was interfered with was much greater than in the case of an adult in the Nashua Street Jail,’’ said Shapiro, adding that he hopes the court considers that there are different issues for juveniles in custody.

Josh Dohan, director of the Youth Advocacy Department of the Committee for Public Counsel Services, said children facing serious charges need to “get good, mature advice’’ from parents or guardians without fear that their conversations will be used against them in court.

“For that group of kids, they have no opportunity to do that if the Commonwealth can get their phone calls,’’ Dohan said. “If the jail needs to record the calls to maintain security, that’s one thing, but that doesn’t mean they should be handed over to the state for prosecution.’’

But Corey Welford, a spokesman for Leone’s office, said, “This is a defendant that’s charged with first-degree murder for allegedly stabbing a defenseless 15-year-old victim. We will continue to argue consistent with existing law that the defendant was put on notice that his calls were being recorded and that those calls should be admitted as evidence at trial.’’