Attention Pamela Smart searchers.

Since putting this page up, many people have come here while searching for WWW pages on Pame. Therefore, we created a WWW page on that case at an external site. Read this page if you wish, then head over there.

Defending Yourself - Taping DCYF

DCYF, New Hampshire's Division of Children, Youth, and Families, cultivates a public image of being an agency that puts families and children first. A noble task staffed with noble people. One would assume that they would have nothing to hide and take great pride in showing how they help thousands each year. Yet they hate being taped, they use a shroud of secrecy in everything they do, and they lie to children, parents, defense lawyers, their own lawyers, and the court system.

DISCLAIMER: The following information should not be construed as being legal advice. It absolutely must not be construed as commentary on any state law except New Hampshire Law in effect when this page was written. Before you undertake any course of action, consult an attorney.

In particular, a decision by the Massachusetts Supreme Court ruled that surreptitious taping of police officers at a routine traffic stop was a violation of their rights. The Massachusetts Constitution has some of same language used in the analysis below that is in the NH Constitution. However, the tape was used as evidence of police abuse, not as the citizen's defense, so the constitutional language does not apply for that use.

One possible way to defend yourself from lies is by taping everything the Division does or says during the course of your case. While audio tape can be expensive, and transcribing it more expensive, it's worked in a couple of my cases. Note: Federal Wiretapping law prohibits telephone wire tapping so long as neither party knows it's going on, and without a warrant. So, under federal law, it's legal to tape telephone conversations if you are the knowing participant on one end of the conversation. However, the Federal Government specifically left open the possibility for states to have more restrictive laws, and some states have done so. See 18 U.S.C. Sec. 2511

In New Hampshire, taping telephone conversations is automatically against the law according to the statute. However, according to Article 15, which is our state constitutional article giving Defendants rights, Defendants are entitled to "all proofs favorable to [their defense]." This goes beyond the wording of the federal constitution, which states Defendants are entitled to all witnesses in their defense. Amendment VI.

In addition to the constitution providing a reason to override the statute when taping in defense of a child abuse allegation, the state statute on wiretapping leaves a huge loophole in it, in that face to face taping is only illegal if it meets the definition of oral communication as defined in the statute. "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. This loophole was put in the statute so police could continue to surreptitiously tape criminal suspects legally. But, it can't be illegal to "do unto the government" as the government can do unto you!

There are three separate arguments as to why the NH Wiretapping statute, RSA 570-A, doesn't apply to government employees:

  1. Under the constitution, they aren't persons. (This is actually true, and one of my favorite arguments. See e.g.: Polk County v. Dodson, 454 U.S. 312 (1981).) "When a full time state employee, working in an office fully funded and exclusively regulated by the State and acting to fulfill a state obligation, violates a person's constitutional rights, the Court consistently has held that the employee acts 'under color of' state law, within the meaning and reach of 42 U.S.C. Sec. 1983." Also, "if an individual is possessed of state authority and purports to act under the authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity.... Griffin v. Maryland, 378 U.S. 130, 135 (1964).

  2. Even if they were persons, persons have to subjectively exhibit the expectation that their communication is not subject to interception, which rarely happens. This means they have to state out loud that they don't expect their communications to be intercepted (taped.)

  3. Even if they do exhibit that expectation, their expectation must be reasonable. This can hardly apply to an agency who deals in secret with its defendants, is entitled to introduce hearsay in Court proceedings, and then lies in Court, to their clients, and everyone else. There is absolutely no other way to obtain information about their wrongdoing. For a U.S. Supreme Court case on reasonable expectation of privacy, see: Katz v. United States, 389 U.S. 347 (1967).

The following is a series of communications involved in a professional conduct complaint by Judge Larry Smukler on the issue of surreptitious taping of DCYF conversations. Judge Smukler reported me to both the NH Attorney General and the Professional Conduct Committee obviously without permitting me to brief the issue in the case before him. So, I was required to answer the Professional Conduct Committee instead of the usual method of briefing the issue for the Court.

One tape is of a meeting involving Nancy Rollins, the director of DCYF. The other was between a client and a court clerk. In order to help make sense of the following, here are the chronology and contents of the paper trail of this investigation:


June 24, 1999 [sic]
This was the date of his
first complaint against me. He obviously used the same file. This letter was written in April of 2000.

James L. DeHart, Esquire
Committee on Professional Conduct
Suite 304
4 Park Street
Concord, NH 03301

Re: Attorney Paula Werme

Dear Mr. DeHart:

Enclosed, please find a transcript of a portion of a April 5, 2000 juvenile hearing before me and an order I issued this day allowing limited disclosure of same pursuant to RSA 169-C:25, II. The transcript indicates that Attorney Paula Werme, along with her client, may have surreptitiously tape recorded certain conversations with representatives of opposing parties.

Attorney Werme's involvement in surreptitious tape recording may implicate the Rules of Professional Conduct. See e.g. Professional Conduct Rules 1.2(d) and 8.4.; see also RSA 570-A:2 (supp) (defining willful interception of oral communications as a crime.) I am therefore sending these documents to you in conformity with my obligation under Supreme Court Rule 38, Canon 3B(3)(b) so that the Committee can take whatever action it deems appropriate. I am also sending a courtesy copy of this letter and the enclosures to Ms. Werme.

Sincerely,
 
Larry M. Smukler
Associated Justice

Enclosures

pc: Attorney Paula Werme (with enclosures)


THE STATE OF NEW HAMPSHIRE

Docket # [ redacted ]

ORDER

Pursuant to RSA 169-C:25, II, the Court, sua sponte, authorizes disclosure of the partial transcript of the April 5, 2000 hearing in this matter to the Committee on Professional Conduct and the Office of the Attorney General. Additionally, this order may be disclosed to the Committee on Professional Conduct and the Office of the Attorney General. This order is issued ex parte to Attorney Paula Werme and her client. The order shall otherwise be sealed.

You have to admire DCYF's and the Court's consistency in opposing public disclosure of anything. I requested and received of the PCC a redacted copy of the partial transcript suitable for public disclosure. That copy is used here. Curiously enough, when the AG's office fulfilled the Freedom of Information Act request, they included the non-redacted transcript! While the AG may consider my actions reprehensible, Judge Smukler might consider the AG office's action contemptible! :-)

So Ordered.

Date: April 6, 2000
/s/
Larry M. Smukler
Presiding Justice


THE STATE OF NEW HAMPSHIRE

MERRIMACK, SS SUPERIOR COURT

IN RE: JUVENILE PETITION

[CASE NAME REDACTED]

Before: Honorable LARRY M. SMUKLER,
Presiding Justice, Superior Court,
Belknap County Superior Court,
Laconia, NH,
on April 5, 2000

APPEARANCES:

For the Petitioner: James R. Anderson, Esq.
Attorney at Law
For the Respondent: Paula J. Werme, Esq.
Attorney at Law
Guardian ad Litem: Suzanne L. Rock, Esq.
Attorney at Law
For CASA: Cindee Carter
David Sandberg, Esq.
Attorney at Law
Clerk: Dana Zucker, Esq.
Official Court Reporter: Theresa M. Vadala, RPR

P R O C E E D I N G S

(The following is a partial transcript of the hearing held on April 5, 2000.)

MR. ANDERSON: I have one further issue - - that is a brief issue - - and that is we are requesting an order from the Court with regard to surreptitious tape-recording. There's been a lot of tape-recording going on by the respondent and the respondent's counsel. Some of that tape recording has been done without the knowledge or consent of the person who is being taped. That's highly unlawful. I can represent to the Court at least two instances that we are aware. One was this October 29th, '99 meeting that Attorney Werme had requested of the director of the agency, Nancy Rollins, who agreed to the meeting and met with Attorney Werme, Ms. [ redacted] and [ redacted]. Unbeknownst to Cynthia Hogan and the director, that meeting is taped.

I just received a transcript of that. The director - - I notified the director that it had been taped. I provided a transcript, and she referred it to the Attorney General's office.

The other recent confirmation that I have I received a - -

"Highly unlawful?" The substance of his argument cites no statute, rule, anything he is relying upon as legal authority.

THE COURT: There is a statute on this, isn't there?

MR. ANDERSON: Yes.

MS. WERME: Your Honor, I am not aware of the statute - - I'm aware of a telephone statute. I'm not aware of a statute as it relates to face to face communications. There is no - - that you have to provide evidence, and I think you have to consider too these are not two private parties. This is a government against a private party, and she has a right to verify what the government says.

MR. ANDERSON: Wait a minute. Employees of the government do not give up their individual rights simply because of their employment.

Government employees acting in their capacity aren't individuals. They're the government. As "the government" they have NO rights to give up. Sorry, Jim, all the rights belong to my clients, not yours.

THE COURT: I understand the positions. I will take it under advisement.

(This concludes the partial transcript.)

* * * * * * * * *

CERTIFICATE

I, Theresa M. Vadala, Certified Shorthand Reporter in and for the State of New Hampshire and the New Hampshire Superior Court System, do hereby certify that the foregoing transcript, as reduced to computer type under my supervision, is a true and accurate transcription of my stenographic notes to the best of my knowledge, skill, ability, and belief.

April 6, 2000
/s/
Theresa M. Vadala, RPR


The next step in the process is for the PCC to inform me of the investigation and give me an opportunity to respond. This is mostly a form letter, feel free to skip it.

April 10, 2000

Paula J. Werme, Esquire
83 North Main Street
Boscawen, NH 03303

Re: Werme, Paula J. advs. Professional Conduct Committee - # 00-N-041

Dear Ms. Werme:

The Committee on Professional Conduct has docketed this Committee generated complaint against you based upon the content of the enclosed letter dated June 24, 1999. [Sic], received by this office on April 7, 2000 from Associate Superior Court Justice Larry M. Smukler, together with a copy of a Court Order dated April 6, 2000 in Docket # 98-J-___ and a transcript of a portion of a hearing in a juvenile matter heard before him on April 5, 2000. More specifically, the Committee calls your attention to allegations made by Judge Smukler in his letter that you may have surreptitiously tape recorded certain conversations with representative of opposing parties; that your involvement in surreptitiously tape recording may implicate RSA 570-A:2(supp.) And Rules 1.2(d) and 8.4 of the Rules of Professional Conduct.

Involved in this complaint are questions under the Rules of Professional Conduct, in particular, but not limited to Rules 1.2(d); 4.4; 8.4(a); 8.4(b) and 8.4(c).

You are required to submit an original and two copies of your reply within 30 days of the date of this letter to Robert C. Varney, Chair, c/o James L. DeHart, Administrator, 4 Park Street, Suite 304, Concord, NH 03301 with a third copy to Robert C. Varney, Chair, 26 North Main Street, PO Box 509, Wolfboro, NH 03894. See 2.3(b) of the Committee's Rules and Procedures. IT IS EXPECTED THAT YOU WILL PROMPTLY RESPOND TO THE REQUESTS OF THE COMMITTEE. THE FAILURE TO COOPERATE WITH A DISCIPLINARY COMMITTEE COULD RESULT IN THE SCHEDULING OF A PUBLIC HEARING AND A FINDING THAT THE RULES OF PROFESSIONAL CONDUCT HAVE BEEN VIOLATED. RULE 8.1(B).

Following receipt of your reply, the Committee will take any further action it considers appropriate.

Please be advised that all matters relating to complaints submitted to this Committee, and any action taken by this Committee shall be kept confidential, until otherwise provided by the Rules of the Supreme Court. See New Hampshire Supreme Court Rule 37(18).

Pursuant to New Hampshire Supreme Court Rule 37(19), enclosed is a complete copy of Rule 37 as well as a copy of Rule 37 A entitled Rules and Procedures of Committee on Professional Conduct.

Sincerely,
 
James L. DeHart
Administrator


Paula J. Werme, Esq.
Attorney and Counselor, P.L.L.C.
83 North Main Street
Boscawen, NH 03303
753-9384

April 22, 2000

Robert C. Varney, Chair
Professional Conduct Committee
4 Park Street Suite 304
Concord, NH 03301

Re: 00-N-041

Dear Mr. Varney,

As requested by the Committee on April 10, 2000, I am replying to the complaint:

As you know, Judge Smukler has previously lodged a complaint against me for violation of RSA 169-C:25, and or violating Rule 8.4 by either committing a criminal act or advising or assisting or inducing another to do so. My defense against that complaint did and does rest on constitutional grounds.

In this instance, the other attorney involved in the matter brought up the matter before Judge Smukler in a hearing, saying something to the effect that it was illegal to tape another person. Not having the statute in front of me, and because I had not read the statute to prohibit face to face taping of conversations, I stated that I was not aware that there was a law that prohibited face to face taping, as well as consideration for the fact that it was a governmental employee that I taped. I had researched the area of wiretapping last year by looking up both the federal and state laws with respect to wiretapping, and had decided that it was legal to do what I did do. In the hearing of April 5, however, I had long since forgotten the details of that research, and Judge Smukler apparently wasn't prepared to listen to a legal argument or permit me to brief the issue before reporting the conduct to the Attorney General's office and to you. I will also note that his subsequent order did not specifically prohibit any taping of conversations, but simply stated that both my client and I were to comply with the statute. I am offended that he would, for the second time, make these allegations and file this complaint without doing the research himself, or even permitting me to file a brief in the Court regarding the matter.

Over the weekend of April 7 - 8, I did much more research than I did last year, and decided that:

  1. I did not violate the statute. See RSA 570-A:1, II. The issue of whether the "oral communication" fit the definition is clearly a jury issue, and not appropriate for this committee to decide. I will also point out that the definition appears to put the analysis right back into Katz v. United States, 389 U.S. 347 (1967), which is the analysis under which the issue of expectation of privacy would be answered on any state bar examination. Clearly, it cannot be prohibited to do unto the government what the government may do unto you.

  2. If I did violate the statute, it could not constitutionally be construed to prohibit taping conversations with governmental employees by a private party when the two are involved in litigation involving the liberty interests of the private party, because a person is entitled to all "proofs favorable to him." Article 15, Part I, NH Constitution.

    I do not believe that the Professional Conduct Committee is the proper place to fully brief the issue of the constitutionality of a statute prior to any criminal charges being filed in the matter. Be advised that consistent with my clients' constitutional rights, I may in the future decide to engage in the very same behavior, but unless either any of my clients or myself is convicted of behavior resulting from this sort of behavior, I will decline to respond further to any Committee Complaints on the issue.

    Consistent with the Supreme Court's Decision in Werme v. Professional Conduct Committee, I would respectfully request that the Committee make a redacted version of the complaint public information at your earliest convenience. Thank you.

    Sincerely,
     
    Paula J. Werme, Esq.

    Cc: File


The Portsmouth Prosecutor sent the following letter while the Professional Conduct Complaint was pending.

May 25, 2000

Paula J. Werme, Esq.
83 North Main Street
Boscawen, NH 03303

Re: State v. [Redacted]

Dear Attorney Werme:

As you may remember, I entered a nolle prosequi in the above-referenced matter as a result of your disclosure that you had directed [your client] to secretly tape record one of the Court personnel at Brentwood. As I mentioned at the time, the Attorney General's Office wanted to look at the matter. They have done so. They have concluded that there was nothing illegal about what you did. Therefore, I can now move forward on the trial involving [your client.]

[Case specific material redacted]

Very Truly yours.
 
Robert Ducharme
Asst. City Attorney/Prosecutor


I promptly forwarded the letter to the NH Professional Conduct Committee.

May 31, 2000

Robert Varney, Chair
NH Professional Conduct Committee
4 Park Street
Concord, NH 03301

Re: Werme, Paula J. advs. Professional Conduct Committee - # 00-N-041

Dear Mr. Varney,

I am enclosing a copy of a letter I received from the Portsmouth prosecutor's office regarding a case in which my client was charged with stealing evidence from a Court file.

[ confidential client material redacted ]

As you can see by his letter of May 25, 2000, the Attorney General indicated that neither I nor my client engaged in any illegal behavior by taping the Court clerk surreptitiously. I believe his reasoning has application to my pending professional conduct matter. If the Attorney General agrees that the surreptitious taping is legal in defense of Article 15 litigation, I don't believe that I will ever be charged with any crimes. I would therefore request that pursuant to my reply letter to the committee, that the matter be formally closed.

I thank you for your prompt attention to the matter.

Sincerely,
 
Paula J. Werme, Esq.


I also wrote to the prosecutor, stating that I would be screaming to high heaven about a speedy trial. He nolle prosquei'ed it (withdrew the charge) in hopes of refiling as a felony BECAUSE we taped the court clerk for the defense. Apparently, he struck out, because he got neither a felony indictment nor new charges on taping.


A standard FOIA request to get the case for my records (and to see if there are surprises I haven't heard about).

May 31, 2000

New Hampshire AG's Office
Criminal Division
33 Capitol Street
Concord, NH 03301

Re: Right to Know

Dear Sirs,

I believe that Judge Larry Smukler reported me to your office around April 5, 2000 for surreptitiously taping Nancy Rollins in a meeting with a client regarding a child abuse defense matter. Around the same time as I was also reported by Robert Ducharme, Esq., the Portsmouth Prosecutor, for advising a client to tape record a Court clerk to obtain information for in defense of a crime.

I have now received verification from Bob Ducharme that your office advised him that my criminal client committed no crime in surreptitiously taping the Court clerk. This would necessarily imply that when it is not illegal conduct to tape a government employee in defense of an article 15 matter, it could also not be illegal to tape a government employee in defense of an article 15 civil, but quasi-criminal matter.

Please send me copies of both files, as I reasonably believe that both matters are closed. Thanking you in advance for your cooperation in the matter.

Very Truly Yours,
 
Paula J. Werme, Esq.


The AG's office responded promptly, and two items were interesting enough to include here. A third, a copy of the sealed transcript from Judge Smukler should not have been released, however it has no significant information not in the redacted version. Still, this is a big oops! If I accidentally released a sealed document, my law career would be in jeopardy.

May 9, 2000
Robert E. Ducharme
Assistant City Attorney
City of Portsmouth
Municipal Complex
1 Junkins Avenue
Portsmouth, NH 03801
Re: [redacted] Attorney Paula Werme

Dear Bob:

I am writing in response to your letter dated April 26, 2000. In that letter, you forwarded an audiotape that your received from Attorney Werme, as well as the complete file of the criminal charges that had been brought against [] for stealing evidence from the court. In my subsequent telephone conversation with you, you indicated that you understood that the audiotape was recorded by [] at the direction of Attorney Werme. You indicated that it was your understanding that Ms. [] had the tape recorder in her purse while she visited the Brentwood Family Court. Ms [] recorded the conversation that she had with the court clerk while standing at the counter in the clerk's office. After reviewing the audiotape and the circumstances surrounding the recording and analyzing the wiretapping and eavesdropping statute, RSA 570-A, I have determined that neither Ms. [] nor Attorney Werme have committed a criminal offense. RSA 570-A:2 prohibits the interception of an "oral communication" without the consent of all parties to the conversation. RSA 570-A:1 defines "oral communication" to mean "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." Because it appears that Ms. [] recorded the conversation while standing in a public place at the courthouse, the circumstances do not justify the clerk's expectations that her conversation would not be recorded by Ms. [] or anyone else. While this conduct is reprehensible, it does not meet the statutory requirements for prosecution.

Reprehensible!? My action was essentially no different than a police officer or other person who records a citizen in order to get a suspect to discuss a crime on tape. In these cases I wanted to get statements on tape to challenge statements made in court. I'll send copies of this to some criminal lawyers I know, they'll get a chuckle out of it.

Thank you for referring this matter to our office. If I can be of further assistance, do not hesitate to contact me.

Sincerely,
 
N. William Delker
Assistant Attorney General


The other item of interest was the following Portsmouth Police Department Incident Report filed by the prosecutor. I had called to tell him that I didn't think he could prove beyond a reasonable doubt that my client had stolen evidence because the court clerk said on tape that there was no evidence list. He took the tape and opened a case for my allegedly illegal taping.

The report's summary of my conversation is quite accurate, and his phrase "in a knowing tone" is wonderful, even though I don't know exactly what he meant by it.

Incident #: 00-727-OF
Call #: 00-10631
Date/Time Reported: 04/07/2000 1330
Report Date/Time: 04/17/2000 1234
Status: Incident Open
Reporting officer: CITY EMPLOYEE ROBERT DUCHARME

Page: 1
04/26/2000

On Thursday, April 6, 2000, one of the voicemails I received was from Attorney Paula Werme. She identified herself as such. She told me that she had sent me a copy of an Objection to a Motion I had filed in court. She also stated she was sending me a copy of an audiotape. On the audiotape was a conversation between someone (I am not sure whether she said herself, us, me, or anyone else) and a clerk of court. I do not believe she identified which court. I assumed it was Portsmouth District Court.

She stated that the tape indicated that they had a clerk on record stating that there was no evidence list. The existence of an evidence list was an important piece, from Attorney Werme's perspective, in the pending criminal case involving her client.

On Friday, April 7, 2000, at approximately 1:15 p.m., I received a priority mail envelope from the United States Postal Service. In the package was the Objection from Attorney Werme and an audiotape. The audiotape has since been entered into evidence.

I took the audiotape and played it in the presence of Detective Sergeant Champlin, Detective Grella, and Christina Viel. The tape is somewhat muted and a little garbled. You can, however, hear snippets of conversation between someone asking about a particular case and someone responding to those questions. It is clear from the tape that someone was recorded without their knowledge.

After hearing the tape, I went to Lieutenant Yerardi. He opened a case number, and we submitted the tape into evidence. After that occurred, I went back to my office with Lt. Yerardi and I placed a telephone call to Attorney Werme. We talked briefly about the receipt of the Objection and the fact that Judge Taube had already granted the State's Motion. Attorney Werme explained (I do not remember the exact words) that she was not surprised because that was how Judge Taube operated. She explained that she has had problems with Judge Taube in the past. We then spoke about the tape. I explained that it was somewhat garbled and that I could not make out who was on the tape. I asked whether it was her or whether it was Ms. []. She explained that it was Ms. [], stating "she did what I told her to do." I was not sure what she meant by this comment, so we talked some more. During the conversation, which lasted approximately seven minutes, Attorney Werme did most of the talking. She stated that "I have known Taube to lie in court orders. I have personal knowledge of that." She vented against the clerks and Judge Taube for several minutes, not in an angry tone, but just in a knowing tone.

At one point I explained that part of the reason I had not been sure whose voice was on the tape was because the speaker spoke in legal terms. Attorney Werme chuckled and stated that she had told Ms. [] what to say and, indeed, there was legal language spoken. However, she stated Ms. [] would not have known what she was saying.

At some point, I explained to Attorney Werme that in light of her past difficulties she must have known I that she would have problems getting access to the evidence list. She had earlier explained that she thought these people would not allow access to it and would deny that there was any type of "evidence list." In light of her complaint about someone hiding the case from her and denying access to her and Ms. [], I asked whose idea it was to audiotape the conversation in the hope of getting them to admit something. She then laughed and stated "mine." She then just continued to speak. She stated that she has been in front of the Professional Conduct Committee in the past for illegally taping. She stated that the "AGs" might be on their way over now. She stated "Go ahead. Give them a call." She stated "I do not interpret the statute that way." I do not remember the exact language, but she made it very clear that she believed she could tape anyone without their consent and without their knowledge. Her attitude was carefree. After making these comments, she then went on to explain once again why she had done it. She directed her client to go do this. I did not ask if she actually provided Ms. [] with the tape recorder. However, she stated that she had engineered this course of events because "I thought they were going to lie."

RED/cv


While I suppose it's not surprising that government attorneys would consider their employer above investigation, I'm not going to let a declaration of reprehensible actions pass without direct comment. I.e. Attorney Delker needs a chewing out.

The Pamela Smart case referenced below is New Hampshire's most notorious case, possibly since Lizzie Borden (gave her mother 40 whacks). It predated the WWW, the link above is one of the substantive sites online other than references to Murder in New Hampshire, a movie that pretty closely parallels the case.

June 15, 2000

N. William Delker,
Assistant Attorney General
Office of the Attorney General
33 Capitol Street
Concord, NH 03301-6397

Dear Attorney Delker,

I recently received a Right to Know package on the request of Attorney Robert Ducharme for a determination by the Attorney General's office of whether or not my conduct in surreptitiously taping Nancy Rollins in a meeting was legal. While I applaud the legal reasoning and caution of your office in making its determination that the conduct was in fact legal, I was not so favorably impressed by your off hand comment to Attorney Ducharme that my conduct was "reprehensible."

I had occasion to go to the NH Supreme Court to see what the Attorney General's office said about similar conduct on the part of the prosecutor in the Pam Smart case. Clearly, in that case, your office argued that the conduct of placing a body wire on Cecelia Pierce for purposes of taping Pamela Smart in a private place without the benefit of a search warrant was not only legal, but ethical. Justice Temple of the Superior Court agreed that the rules of Professional Conduct could not be intended to stymie undercover investigations simply because a suspect has retained counsel.

I find your position to be disingenuous in the two matters. You cannot possibly intend to take the position that what is legal and ethical for the government to do in the prosecution of a criminal matter is unethical for a defense attorney to do in defense of one. I personally take the position that the constitution being a limitation on the conduct of government, it necessarily follows that what is legal to do unto the citizens, is legal for the citizens to do unto the government.

Please be advised that at this time, I do not intend to sue you personally for your slanderous comment provided that I receive an apology in writing within the next thirty days. I am giving you fair warning, however, that to the extent that you or anyone in you office ever again makes a negative comment about my ethics involved in the defense of my clients, there will be legal action taken.

Reprehensibly,
 
Paula J. Werme

cc: http://www.people.ne.mediaone/werme/law (page not added yet)
Twomey & Sisti Law Office


Date: Sat, 14 Jul 2001 12:45:52 -0400
From: Paula Werme 
Subject: Welcome to the People's Republic of Massachusetts

I'm sure after yesterday's MA Supreme Court ruling, Commonwealth v. Michael Hyde, the Sons of Liberty are looking for new burial grounds somewhere in a free country! Massachusetts, the cradle of the American Revolution, can certainly be no longer considered any cradle of liberty. Whatever happened to "legal analysis?" "State action" is the first step in constitutional analysis. When an action is done under the color of law, it is, by definition, NOT private action! A person acting under color of law, in particular, persons with GUNS, are NOT private actors! They ARE government, they are FORCE! The MA Supreme Court justices apparently didn't understand the starting point for legal analysis, except for the dissent. One doesn't have to stop there for reasons to find the ruling absurd. Excerpts from articles of the Massachusetts Constitution:

Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Comment: By whatever means the people can make them accountable! It certainly includes tape recorders. Freedom of the press is at grave risk when government is not accountable to the people by the mere recording of words.
Article VI. No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.
Comment: Doesn't the wiretapping law on its face give the police and government more power than the people in general? Then it's unconstitutional! It's also the first step on the slippery slope toward a totalitarian government.
Article XII. And "every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defense by himself, or his counsel, at his election. . . ."
Comment: That cinches it. Same wording as the NH Constitution. Subjects are entitled to all PROOFS favorable to him. That means when MA Article XII is applicable to the situation, the entire wiretapping law is UNCONSTITUTIONAL, including telephone wire tapping, wiretapping private individuals, and surreptitious tape recording of government or individuals.


A Final New Hampshire Note

While it is mostly likely legal to tape anyone in defense of a New Hampshire action under Article 15, the Attorney General has not had an opportunity to look at the issue of whether or not taping PRIVATE individuals in defense of an Article 15 charge is a criminal act. For the time being, I plan to restrict any taping to GOVERNMENT officials and other individuals closely associated with cases. For information on how to obtain equipment to tape record the Division and its officials, there are several good web sites. One is http://www.spyhq.com Again, consult an attorney first and the laws in your state are different.


A Final Portsmouth Note

7 1/2 years after I wrote this, not too much has changed. However, the news today brings lovely story from the Portsmouth Police Department.

SeacoastOnline reports on how they installed audio equipment to listen in to the interactions between the public and the employees at the records department.

"When employees realized their conversations were being recorded, they complained to police brass, prompting an internal investigation, then a review by the county attorney's office, which ruled no law was broken."

One conclusion of the County Attorney was "the police employees who installed the bug and listened to the conversations thought "the recording system was lawful and would serve the public good by (ensuring) that the interactions of employees with the public were professional."

Curiously, "Half the time Employee #2 monitored conversations during the three-month period stated by Reams was when the records office was closed to the public, according to his report." So it appears that the government can record its employees and the public as long as they have no criminal intent.

Note that this is an opinion of a county attorney, do not rely on this as case law.


Final National Notes

The Reporters Committee for Freedom of the Press has WWW page that reports on the legality of taping in each state.

This web site listed 12 states which need consent of all parties to tape a conversation. They are, as of the time of this update: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. I checked all twelve states to determine how the taping law comports with the right to have all "proofs" in one's defense. No state on this list other than NH guarantees the right to all proofs in your defense, which overrides the plain wording of the law if one is defending child abuse or neglect charges. Illinois and Washington both have constitutional provisions guaranteeing the right to privacy. These provisions should apply to government interference with privacy, but given that every state has passed child protection laws, and that the Wenatchee witch hunt was based in Washington state, it's doubtful that the state respects their own constitutional provisions. While I would still argue that government agents are not citizens for the purposes of privacy laws or constitutional provisions, be aware that taping conversations in those states could have extremely serious consequences, as in jail time.

Another site that is a good resource comes from students at the Green Mountain Central School District. While it was written for the telephone call center support industry, it has good links to several general interest sites and the history behind how the US Supreme Court's interpretation of the 4th and 5th amendments have redirected wiretap laws.


Contact Paula Werme, Esq. or return to Law Practice home page.

Last updated 2011 Dec 13.