Are lawyers only investigated/prosecuted when they break ranks?
By EDMUND H. MAHONY | Courant Staff Writer
August 24, 2007
A federal judge has refused to dismiss obstruction charges against a lawyer accused of destroying a laptop computer after a group of his clients, officials of Christ Church in Greenwich, found the computer and determined that it contained pornographic images of children.
The ruling against lawyer Philip Russell of Greenwich has been nervously awaited by Connecticut's criminal defense bar.
Defense lawyers have called the case an example of prosecutorial over-reaching and have predicted that the decision by Senior U.S. District Judge Alan H. Nevas - if it leads to Russell's conviction - could have a crippling effect on their ability to defend clients.
In a written opinion dated Wednesday, Nevas refused to adopt Russell's arguments attacking his indictment.
Russell had argued that he cannot be guilty of obstructing an FBI pornography investigation because he was unaware that the computer had become the subject of a secret FBI investigation two days before he destroyed it.
Because he was unaware of an investigation, Russell argued, he lacked the guilty intent necessary to be convicted of obstruction of justice.
"In sum, there is no merit to Russell's arguments, which essentially ask the court to make a factual determination that the government cannot prove either a nexus or intent," Nevas wrote. "It is well settled that such factual determinations are for a jury, not the court, to decide after hearing the government's proof and being instructed on the law."
Russell was indicted in February on two counts of obstruction of justice for destroying the computer onto which Robert Tate, the church's choirmaster for 24 years, had downloaded pornographic images. At the time, Russell was the church's lawyer.
Church officials had alerted Russell to Tate's computer on Oct. 8, 2006, after another church employee found the material on the laptop a day earlier. Russell says he had no knowledge that the FBI had secretly begun a pornography investigation of Tate on Oct. 6.
After the discovery of the pornography, Russell and two church officials met with Tate on Oct. 8, according to the indictment against Russell. Tate admitted that the pictures were his and agreed to leave the church. Russell referred him to a criminal defense lawyer and helped arrange for him to travel to California.
After the meeting, Russell took the laptop from church officials and "altered, destroyed, mutilated, and concealed it," the indictment says. He is charged with two counts of obstruction under the 2002 Sarbanes-Oxley Act, which Congress enacted in response to a wave of corporate accounting scandals.
The law makes it easier for prosecutors to win obstruction convictions because it requires them to prove only that an investigation was foreseeable, rather than pending.
If convicted, Russell faces a maximum of 40 years in prison, although his sentence probably would be far more lenient. Tate was arrested after the computer was destroyed, and he pleaded guilty to possession of child pornography. He is awaiting sentencing.
The case has alarmed many defense lawyers, who have intervened in Russell's prosecution and argue that it could damage the attorney-client relationship, a relationship that protects the confidentiality of communication between lawyers and their clients.
Russell's attorney, Robert M. Casale, said after arguing before Nevas last month that a conviction would send a message to all defense lawyers: "By virtue of the case of the United States against Philip Russell, you're all conscripted to be agents of the government. And if you don't act in that capacity, we'll prosecute you."
The Connecticut Criminal Defense Lawyers Association also filed a brief opposing the indictment. Moira L. Buckley, representing the association, said Russell learned of the computer's contents in a confidential conversation with a client.
To turn the computer over to authorities would violate that confidence, she said; to retain it would violate federal child pornography laws.
Russell's conviction "will cause a severe chill" in the relationship between lawyers and clients, Buckley said.
Contact Edmund H. Mahony at firstname.lastname@example.org.
Copyright © 2007, The Hartford Courant
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The story of Chris Kennedy, Ellington, Connecticut [click here]