Lawyers say teen charged with stabbing classmate to death has Asperger's, shouldn't be held responsible

From The Boston Globe:

A state judge erred when he blocked Middlesex prosecutors from using conversations routinely tape recorded at Plymouth County jail between a teenaged murder defendant and his parents as potential evidence, prosecutors argue in a brief filed with the state's highest court.

District Attorney Gerard T. Leone Jr. said Middlesex Superior Court Judge Raymond J. Brassard's ruling last year would hinder prosecutors at trial when they
challenge the defense's contention that John Odgren (pictured) was legally insane when he fatally stabbed a fellow student at Lincoln-Sudbury Regional High School in 2007.

The ruling, which held that prosecutors should have obtained the court's approval before issuing subpoenas for more than 30 hours of tape-recorded conversations, would "effectively create an investigatory 'black hole' " that could have serious implications in other cases, said the 50-page brief filed with the Supreme Judicial Court.

"As we argued in [Superior] Court and in our brief to the SJC, we believe that our office lawfully obtained the defendant's jail calls and that they should be admitted as evidence at trial," Leone said yesterday in a statement.

But Patricia Garin, one of Odgren's lawyers, said Massachusetts criminal procedures require subpoenas for such evidence to be approved by a judge, who would gauge relevance and admissibility and make sure prosecutors are not engaged in a fishing expedition.

"The defendant has very strong privacy interests in the conversations and visits he had with his parents, and we did not have an opportunity to present that position since the Commonwealth got access to the recordings improperly," said Garin, whose legal team plans to file an opposing brief next week.

Both sides plan to make oral arguments during the week of May 4. The court is considering two other appeals involving jail recordings that week.

Odgren, now 18, was arrested Jan. 19, 2007, shortly after he used a 13-inch carving knife to stab James Alenson, a 15-year-old freshman he did not know, in what authorities called an unprovoked attack in the boys' bathroom at the high school.

Odgren's lawyers have said that he suffers from Asperger's disorder, a mild form of autism, and should not be held responsible.

In an attempt to challenge an insanity defense, prosecutors issued subpoenas for more than 30 hours of tape-recorded phone calls made by Odgren from the jail to his parents and friends in the six months after his arrest. The calls included those he made when he spoke on the phone to visitors separated from him by a clear partition. Prosecutors say the tapes show a lucid and coherent teenager who is not in the grip of serious mental illness.

For years, telephone calls from all state prisons and jails have routinely been recorded. Recorded messages at the start of the calls warn people about the practice.

Nonetheless, inmates and detainees have sometimes made comments during recorded calls that prosecutors have later subpoenaed and used as evidence against them at trial. And relatively few defense lawyers have objected to the practice, which many prosecutors consider standard operating procedure.

Last year, however, another Superior Court judge blocked Suffolk prosecutors from using recorded phone calls made by a murder defendant at Nashua Street Jail. Several criminal lawyers predicted that it would lead to similar challenges by defense lawyers.

Leone contended in the brief filed last month that, in light of the recorded warnings to detainees, Odgren "had no reasonable expectation of privacy in the jail calls, and this Court should rule that he had no standing to move to suppress the evidence the subpoenas yielded."

But Odgren's lawyers say the calls are recorded as security measures to prevent crimes in jail or escapes, not to be used as evidence in pending cases.

"We believe that Judge Brassard made the correct decision," said Garin.