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<B>Judge Cortland T. Corsones, left, presides over a bench conference Wednesday with defense attorney David F. Silver in Bennington Superior Court, Criminal Division. Prosecutor Christina Rainville has her back to the camera. (Peter Crabtree)</B>
Judge Cortland T. Corsones, left, presides over a bench conference Wednesday with defense attorney David F. Silver in Bennington Superior Court, Criminal
Judge Cortland T. Corsones, left, presides over a bench conference Wednesday with defense attorney David F. Silver in Bennington Superior Court, Criminal Division. Prosecutor Christina Rainville has her back to the camera. (Peter Crabtree)
Thursday January 24, 2013

NEAL P. GOSWAMI

Staff Writer

BENNINGTON -- A judge is likely to rule today whether search warrants, and their supporting documents, that were served against a local businessman on Monday are public records following a hearing on Wednesday.

An attorney representing Thomas Lyons, owner of Bennington Subaru, argued in Bennington Superior Court Criminal Division that the affidavits filed by police to secure search warrants for Lyons' private residence and business should be sealed. Judge Cortland T. Corsones ordered Wednesday's hearing after attorney David Silver, of Barr, Sternberg, Moss, Lawrence & Silver in Bennington, filed a motion Tuesday to seal the documents and prevent the public from accessing them after the Banner requested copies from the court.

Bennington Police Chief Paul Doucette said Tuesday that Lyons has been under investigation by police for possible criminal activity for about one month. Several sources within town government have confirmed that the investigation involves an alleged prostitution ring.

Corsones allowed a portion of the hearing to be confidential after Silver said he planned to use information within an affidavit as part of his argument. Corsones asked the public, which only included a Banner reporter and photographer and a reporter with the Rutland Herald, to leave the court.

During the open portion of the hearing Silver argued that the documents in question, "to which the public otherwise has access," could be sealed by Corsones because "statutory presumptive right to public access upon return of a warrant can be overcome by showing that a substantial threat exists to effective law enforcement, or individual privacy and safety."

Bennington County Chief Deputy State's Attorney Christina Rainville said the state was not asking for any portion of the records to be sealed or redacted for investigative purposes. Rainville had filed a motion on Tuesday asking for the documents to be sealed, or at least partially redacted to protect the ongoing investigation.

The warrants served against Lyons were part of a three-warrant package, according to Rainville's motion. The third warrant had not been served at the time the motion was filed because police had not been able to locate the targeted woman. Information included in the documents could hinder the investigation, Rainville argued in her motion.

Rainville said Wednesday that the third warrant had been served and the state no longer had a position on whether or not the warrants should be sealed.

Silver made several arguments for sealing them, however.

He said a supporting affidavit used to secure the search warrants is "not a legal document," but rather, it is "an investigatory document."

"It's not part of the court record. It doesn't have to be based on admissible evidence. It can be based on hearsay, and in fact, this was based on hearsay and sometimes double hearsay and triple hearsay," Silver said. "I submit to you, your honor, that much of what is in this affidavit is more prejudicial than probative."

Silver also said release of the documents would constitute a substantial threat to Lyons' privacy, although he said the courts have not made clear what the threshold is.

"I submit to the court that whatever the threshold is for substantial threat to privacy, this affidavit, under these circumstances, meets that threshold and goes far beyond for some of the reasons that we discussed when the court room was sealed," he said.

Silver noted that Lyons is a well-known member of the community, serving as a member of the Bennington Area Chamber of Commerce Board of Trustees and a former member of the Bennington Museum's Board of Trustees, as well as several other local organizations. Lyons, Silver said, is "the owner of a Subaru dealership whose livelihood depends a great deal on his relationship to customers, his relationship to the community at large."

The damage to Lyons' reputation from the documents, should Lyons never face charges or be offered the Diversion program -- which would then seal his court records -- would be "irreparable," according to Silver.

If the allegations in the documents are released while police continue to investigate, Lyons will have no "forum" in which to defend himself "for the many, many months it's going to take to get the forensic evidence evaluated," Silver said.

While Silver said he wanted the warrants sealed unless and until charges are filed, Corsones cautioned that the documents may also be public if the state decides not to file charges.

"I think that might be the case as well," Corsones said. "It still might be a public record at that point."

"We'd be back here arguing that," Silver said.

Corsones said he planned to review Silver's arguments and issue a decision "as quickly as I can."