Today, the state Supreme Judicial Court will hear arguments on whether prosecutors can or cannot use recordings of accused murderer John Odgren’s jailhouse phone calls.
Odgren, 18, of Princeton is charged with murdering classmate James Alenson, 15, in a bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007.
A Middlesex Superior Court judge has previously blocked the use of the recordings, and the Middlesex District Attorney’s office has appealed the decision.
Prosecutors argue that Odgren knew everything was recorded at the Department of Youth Services correctional facility in Plymouth where he was originally housed after his arrest. He is now being held at the Middlesex Jail in Cambridge.
The recordings include phone conversations between Odgren and his family and a friend, as well as face-to-face conversations at the facility. Visitors are separated by glass and must speak into a phone to communicate with those they are visiting.
The Middlesex District Attorney’s office has argued that if the Superior Court’s ruling is allowed to stand, it would have far-reaching complications in the prosecuting process.
In its brief to the SJC, the district attorney’s office said prosecutors do not need judicial approval for non-privileged, non-confidential records. The judge’s ruling “would mean that every time a prosecutor wanted to issue a trial subpoena (prosecutors) would have to get permission from the judge.”
Also, “the commonwealth would have to seek a judicial approval for many thousands of subpoenas it routinely issues.”
In his argument against overturning the judge’s decision, Odgren’s lawyer, Jonathan Shapiro, said prosecutors were trying to bypass a hearing by using a method to obtain the recordings typically meant for the grand jury process.
Shapiro said the rules that govern when and how evidence is collected are a “necessary component of the system of checks and balances that (are) in place in our adversarial system to ensure that defendants are treated fairly.”
Also filing a brief was attorney Carlene A. Pennell. She submitted a “friend of the court” brief on behalf of the Committee for Public Counsel Services.
In her brief, Pennell said ” … the Commonwealth has engaged in widespread abuse of its subpoena authority.”
She said if the court allowed the district attorney’s office to obtain the recordings in the same manner as they do for grand juries, “the pre-indictment versus post-indictment distinction would effectively be eviscerated.”
After an indictment, all such subpoenas should be argued in front of a judge, Pennell said.
The hearing is scheduled for 9 a.m. at the John Adams Courthouse in Boston.