Thursday January 31, 2013

NEAL P. GOSWAMI

Staff Writer

BENNINGTON -- Access to two search warrants and related documents sought by the Banner last week was denied by a judge Wednesday, but partial access was granted for a third warrant that is set to be released Friday at 4 p.m.

Bennington Superior Court Criminal Division Judge Cortland T. Corsones issued the order Wednesday after a motion to seal the warrants was filed in court last week by an attorney for Thomas Lyons, owner of Bennington Subaru. Two search warrants were served by the Bennington Police Department on Jan. 21 at Lyons’ Old Bennington home and Bennington business as part of an ongoing criminal investigation.

Multiple sources have confirmed to the Banner that an ongoing criminal investigation into Lyons involves an alleged prostitution ring.

A third search warrant in the case was executed on Jan. 23 and targeted Jennifer Onorato. Unlike Lyons, her name has not been included in public court records related to the case. However, multiple sources have confirmed that she was the target of the third warrant.

A Facebook page under the name Jennifer Onorato, which identifies her as a Bennington resident, includes a post dated Jan. 25 that acknowledges police served a search warrant and seized her phone.

"(sic)To all my family & friends I would rather be the one to let you all know then any media that Wednesday I was served with a search warrant from the BPD,The seized my cell phone.


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I have NOT been arrested but you may or may not hear or read some messed up accusations about me.YOUR CHOICE if you believe them or not," the post reads.

Lyons has been under investigation for more than a month, according to Bennington Police Chief Paul Doucette. Property was removed from Lyons’ home and business as possible evidence of criminal activity during the searches, Doucette said.

Lyons’ attorney, David F. Silver, with the Bennington law firm Barr, Sternberg, Moss, Lawrence & Silver, said again Wednesday that any allegations of Lyons’ involvement with a prostitution ring are false.

"There’s no prostitution ring, number one, and number two, Tom is not involved in any kind of prostitution ring," Silver said.

The order issued by Corsones on Wednesday is also under seal, meaning his findings and reasoning for preventing public access to the records will not be revealed to the public. A more general, public order was released but provided few details.

According to the public order, Corsones cited a case, "re Sealed Documents, 172 Vt. 152 (2001)," as the basis for his decision.

According to that Vermont Supreme Court decision, previous cases have laid out "a uniform common-law standard under which a court may seal a search warrant and related documents." The decision states that "nearly all agree" the presumptive right of access to court records, including pre-indictment search warrant materials, may be overcome only by showing that "a substantial threat exists to the interests of effective law enforcement, or individual privacy and safety."

The decision states that any harm "must be demonstrated with specificity as to each document" and the party who objects to release of the search warrant and associated materials "must state specific reasons for the need for confidentiality."

Additionally, "the courts have generally directed that secrecy should extend no further than necessary to protect the interests in confidentiality," according to the decision cited by Corsones. The court must "determine whether these interests might be served by deletion of the harmful material."

Finally, the Supreme Court found that "the court must examine each document individually, and make fact-specific findings with regard to why the presumption of access has been overcome." Those findings must be specific enough to withstand appellate review.

Under Corsones’ sealed order it will remain unclear whether the conditions specified by the Supreme Court for sealing a search warrant have been met.

Silver filed the motion to seal on Lyons’ behalf on Jan. 22, the day after the warrants were executed, in order to block public access after the Banner requested copies from the court. Bennington County Chief Deputy State’s Attorney Christina Rainville also filed a motion to seal, but dropped the request after the third search warrant was served and returned to the court on Jan. 23, effectively ending her concern that the investigation would be hindered by release of the documents.

Corsones held a hearing on Jan. 23, most of which was conducted in private, with only Corsones and lawyers representing the state and Lyons present. During that hearing, Silver made an oral motion to include the third search warrant in his motion to seal. The court cited Silver’s oral motion as its reason for denying the Banner access to the third search warrant on Jan. 25.

Corsones said release of appropriate documents, with redactions, will be permitted on Friday. The delay will allow time for parties to file an appeal and request a stay of his order.

Banner Publisher Edward Woods said on Wednesday that the paper will pursue "all avenues of appeal" to have the court release all documents related to the investigation. Lawyers looking into Corsones’ order can find no legal precedent for sealing a search warrant for privacy purposes, according to Woods.

"These documents were public until we asked for them and then they became sealed. It is standard procedure for a newspaper to appeal a decision like this," Woods said.

Contact Neal Goswami at ngoswami@benningtonbanner.com. Follow him on Twitter @nealgoswami