Monday, March 05, 2007

It's not the specific case, but how it can be applied subsequently to future cases

A major problem with today's legal system, particularly what's handed down by the Supreme Court's would-be gods, is that one case launches a precedent that's applied generally.

A certain Connecticut lawyer destroyed a client's computer containing child pornography; that much is not being denied. When there is genuine criminal intent to destroy evidence during a criminal investigation, such an act can be "obstruction of justice" and hence prosecutable. However, the defendant destroyed the computer before the criminal investigation commenced. Therefore, until a few years ago, he couldn't be prosecuted for just that: it's not a crime to lack foresight, or be stupid. (Were that so, we'd have to jail just about every politician who passes laws and every bureaucrat who administers them.)

Federal prosecutors were not satiated with the client's conviction and sought another notch in their belt, so they're using Sarbanes-Oxley to go after the lawyer:
Russell was charged under the Sarbanes-Oxley Act, which Congress passed in 2002 after a wave of corporate accounting scandals to make it easier to prosecute such cases. He faces up to 40 years in prison if convicted.

"The case will test the meaning of those new provisions," Gillers said.

The law, which was aimed at cases involving corporate document shredding, made it easier to prosecute obstruction of justice by requiring only that an investigation was foreseeable rather than already pending. Prosecutors also no longer have to show the defendant acted with corrupt intent to keep evidence from investigators, experts say.

While legal experts agree that lawyers can't destroy evidence, they are concerned that prosecutors' use of Sarbanes-Oxley will pressure defense attorneys to betray their clients' confidences and report potential evidence to authorities or risk prosecution themselves.

"The most troubling aspect is it tries to make lawyers shills or hand maidens for police and government investigators," said Jon Schoenhorn, president of the Connecticut Criminal Defense Lawyers Association.

Future cases could be murkier than child pornography, involving bank records or other documents and items that might incriminate a client in a future investigation, experts say.

"Lawyers will have to be soothsayers," said Martin Pinales, president of the National Association of Criminal Defense Lawyers. "They will have to figure out what some prosecutor in the future may or may not be charging."

Russell, whose wife is a member of the church, does not dispute that he destroyed the computer, said his attorney, Robert Casale. But denies he broke the law.

"He didn't do it to interfere or compromise any government investigation," Casale said.

The case dates back to Oct. 7, when an employee at Christ Church discovered images of naked boys while using Tate's computer, according to the indictment. A day later, church officials sealed and wrapped Tate's laptop, treating it as evidence, authorities said.

Russell destroyed Tate's computer after learning it contained images of naked boys, according to the indictment.
The article is confusing here in the timeline and terminology. I wondered if the reporter made the common and erroneous distinction of a laptop and "a computer," meaning the latter as a desktop. However, this article from a local newspaper makes it clear: church officials took the laptop (the only computer involved) on October 7, and Russell obtained the laptop on October 9. This article states that the FBI began investigating the client on October 6th, but that begets some questions. What prompted the investigation to commence on October 6, before the church worker's discovery on October 7? Was Russell formally advised by police that his client was under investigation, or had he otherwise become aware? (For example, church officials may have told him they turned this over to police.) Now, Russell could be prosecuted for "obstruction of justice" under existing laws if he had in any way become cognizant of law enforcement's involvement. But if that's so, why are prosecutors resorting to a legal trick so they can convict him under lesser intent? And why the distinction of charging him with "obstruction of an FBI investigation" rather than "obstruction of justice"? Would the FBI would care to admit that its investigations are not necessary the pursuit of justice?

Russell's judgment was certainly questionable. Prudence dictates that he not affect any possible evidence and instead limit his actions to advising his client. But stupidity is not a crime, even for a defense lawyer who probably should have known better. It is also not a crime to lack "foresight" or clairvoyance about whether your client is being or will be investigated -- presuming that Russell was unaware, because under that circumstance prosecutors wouldn't need to use SarbOx to convict him. And all that notwithstanding, in the end it's actual criminal intent that constitutes genuine "obstruction of justice," and it doesn't appear that he acted with any ("had any" is a different matter and cannot be proven, because thoughts cannot be proven, only actions). After all, if there was a case for criminal intent to destroy evidence, then prosecutors wouldn't be resorting to SarbOx, would they?

But the problem goes beyond this case. If an attorney can be convicted of "obstruction" with no proof of "acting with corrupt intent," then as the legal experts said in the article, it drastically alters lawyer's responsibilities to their clients. It greatly destroys any trust that a person can place in legal counsel, because the latter may well feel compelled to avoid touching evidence, or advising the client on what to do with evidence, merely because the client might be investigated and charged. Such a forced presumption greatly hinders, if not destroys, the client-lawyer relationship. Note that Russell was retained by the church to advise them on what to do, and not as Tate's formal defense attorney.

As a layman, I doubt that lawyers will feel compelled to reveal (whether acknowledge or turn over) evidence to prosecutors, because that certainly violates a time-honored principle of the attorney-client relationship. Then again, if Russell is convicted, what is that doing but redefining the relationship? Will an attorney be hesitant to discuss with his client even the nature of any possible evidence, lest the former later be charged with "obstruction" for sincere, innocent advice? What about purging his own archived e-mails or other documents as a matter of course? Perhaps those are extremes, but what if attorneys start to feel compelled to archiving everything? At the least, attorneys would have to spend time worrying about not affecting evidence: instead of devoting their energies and resources to clients, they must expend them on what's effectively procedure.

It's once more the law of unintended consequences, the one unavoidable and irrevocable law of all government. I never liked SarbOx, or today's knee-jerk reaction of more regulations and more laws in response to crimes that could already be prosecuted under existing laws. It's one thing for the law to punish criminal performance, but libertarians believe that real law cannot compel performance.


Blogger T. F. Stern said...

The Act presumes guilt through activities which could easily be associated with non criminal daily business.

What about the citizen who purchases a computer program designed to erase data from the hard drive in such a way as to make its recovery impossible? Such practices are suggested in order to protect “sensitive information” from getting into the hands of competitors and criminals. The Sarbanes-Oxley Act could easily be perverted by a zealous prosecutor to go after almost anyone; political foes or the “usual suspects”. Has a crime been committed because “only a criminal” or someone with criminal intent would require such a program, one that removes potential evidence that someday might be useful? In that case our justice system has already found individuals guilty based on presumed intent.

We better all line up at Madame Carnack’s tent for her crystal ball reading sessions between noon and three each afternoon. Be prepared for some delays while the District Attorney’s staff convenes regularly to determine which of us have evil intent.

Monday, March 05, 2007 9:36:00 AM  

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