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Sides Spar Over N.H. Prisoner’s Call Records

Newport — Defense attorneys for a Charlestown man who is charged with allegedly killing his estranged wife argued for a protective order in court on Wednesday that would prevent prosecutors from accessing phone recordings from jail.

Sullivan Superior Court Judge Brian Tucker did not make a ruling on the motion after an hour and a half of discussion by the defense and prosecution.

James Robarge, 44, is charged with first- and second-degree murder in the death of Kelly Robarge, who went missing from her Charlestown home last summer on the same day she filed for divorce. Her remains were found more than a week later.

Defense attorneys Caroline Smith and Alex Parsons did not give details during a hearing Wednesday about what prompted them to file the motion. Typically, inmates’ phone conversations are recorded while they are in jail and those recordings are available to the prosecution and the defense. If the prosecutors acquire information from the recordings, the defense can then file a motion to suppress the evidence. But in this case, Robarge’s attorneys have filed a protective motion to prevent prosecutors from getting the recordings in the first place.

“(Robarge) needs to know going forward for this case whether his calls will be automatically provided to police or prosecutors so he can adjust his actions accordingly,” Parsons said. “There are conversations he may choose not to have. He needs to know that now.”

Robarge is being held without bail at the New Hampshire State Prison for Men in Concord. Parsons agreed in court that the Department of Corrections should be able to record and listen to inmates’ communication for security reasons. But the defense doesn’t want the information to go to police or prosecutors.

“We are concerned about how information that has nothing to do with his case could have an unfair advantage,” Parsons said.

Parsons said that if the Department of Corrections discovers evidence in the recordings that it feels is related to the criminal matter, then they can alert the police.

But Judge Tucker asked Parsons how corrections officers are supposed to know if information in a phone conversation is related to a criminal matter. Parsons said corrections officers know Robarge’s charges and they are free to read about the case in the media and should be able to recognize when information is related to the case.

But Assistant Attorney General Diana Fenton argued that an inmate has a limited expectation of privacy, and Robarge knows he is being recorded and he gives consent when he decides to make a phone call. Knowing the call is being recorded, it is reasonable for the inmate to expect that the recording will be disseminated, Fenton said. Fenton also pointed out that as of this week, the state has only acquired two of Robarge’s phone calls.

“They’re asking for an unheard of, unprecedented protective order for two phone calls,” Fenton said.

University of New Hampshire law professor Albert (Buzz) Scherr, who was a New Hampshire public defender for 13 years, said he could only speculate why the defense would file such a motion, but said there are a number of possibilities, including that there could be inculpatory evidence if the defendant has incriminated himself.

“It certainly will provoke the prosecution to listen to the tapes if they win and get more of them,” Scherr said.

When it comes to making a ruling on the motion, Scherr said a judge could consider the recording message that is given to inmates. If inmates are told that their conversation is being recorded and it could be given to prosecutors then Scherr said a judge would likely rule that the defendant waived his privacy rights and had fair warning.

But, the less information the recording gives about who has access to the conversation, the more likely a judge could rule in favor of the defense.

Robarge’s trial is currently scheduled for January 2015, but Senior Assistant Attorney General Susan Morrell expressed concerns at Wednesday’s hearing that both parties might not be prepared by that date. But Smith, the defense attorney, said Robarge wants a January trial, and she said she thinks she can keep that date.

Sarah Brubeck can be reached at sbrubeck@vnews.com or 603-727-3223.