Lawyer pleads guilty to obstruction (CT)
- From: "Catherine" <catherine!!@xxxxxxxxx>
- Date: Sat, 6 Oct 2007 08:41:32 -0500
http://www.greenwichtime.com/scn-gt-a1russellfridaysep28,0,2489354.story?coll=green-top-headlines
Lawyer pleads guilty to obstruction
By Martin B. Cassidy, Staff Writer
September 28, 2007
A Greenwich criminal defense attorney yesterday admitted he broke the law
last October when he destroyed a laptop computer containing the child
pornography collected by the former Christ Church Greenwich music director.
In exchange for a lesser sentence, Philip Russell, 48, of Stamford, pleaded
guilty to one count of misprision of a felony in U.S. District Court in
Bridgeport, a crime defined as being aware of the commission of a felony
offense and taking action to conceal the crime.
In court Russell acknowledged that while representing Christ Church
Greenwich he failed to report the computerized child pornography collection
of the church's music director Robert F. Tate, and that the laptop he had
destroyed was evidence that should have been preserved for a possible
investigation.
His judgment was clouded by his admiration for Christ Church Greenwich,
where his wife Sally is a parishioner, and his daughter Rachel sang in the
choir under Tate, Russell's defense attorney Robert Casale said after the
court proceedings.
Addressing U.S. District Court Judge Alan Nevas, Russell said he wrongfully
destroyed the computer to protect his client, not to deliberately thwart an
anticipated probe of Tate's child pornography cache.
"It was a mistake," he said. "I did not foresee that law enforcement would
be involved -- I wish I could take it back."
Though the crime is a felony, Russell, who has practiced law in Greenwich
since 1986, will not necessarily lose his license to practice law in
Connecticut, his attorney said.
Christ Church hired Russell on Oct. 9 last year to give advice after a
church employee had found child pornography on the computer belonging to
Tate.
In a meeting that day, Tate acknowledged he had downloaded the pictures,
Russell gave him the name of a defense lawyer to call, and then took the
computer back to his office, where he destroyed it.
Prosecutors charged Russell in February with single counts of destruction of
evidence of child pornography and obstruction of justice, arguing that under
the Sarbanes-Oxley Act, Russell should have preserved the computer as
evidence for a possible investigation.
The Sarbanes-Oxley Act instituted stricter requirements on lawyers to
preserve evidence. Previously, lawyers were required to preserve evidence
only if an investigation was pending, but under the new law, contraband and
other evidence must be kept if an investigation is foreseeable.
Russell acknowledged destroying the computer from the beginning of the case,
but argued that he had no responsibility to turn over the computer because
he was not aware of a federal investigation into Tate's child pornography,
and thus an investigation was not foreseeable.
The prosecution said it could prove in several ways that Russell had known
of his obligation to turn over the laptop to federal authorities.
In an unrelated 2004 case Russell offered to drive to Meriden to meet an FBI
agent immediately, rather than hold onto a DVD he suspected was child
pornography over a weekend, U.S. Attorney Peter Jongbloed told Judge Nevas.
"The FBI told him to put the DVD in the safe and that the following week
they would make arrangements to pick it up," Jongbloed said.
And in a divorce case in state court six months before he was indicted,
Russell argued that child pornography should be delivered to law
enforcement, said Jongbloed, who declined comment on the case after the
proceedings.
Tate, who pleaded guilty in January to a single count of possession of child
pornography, had been expected to testify against Russell at his trial this
week.
In a statement on the case yesterday afternoon, U.S. Attorney for
Connecticut Kevin O'Connor said Russell willfully broke the law.
"Affirmatively assisting those who commit federal crimes by concealing
criminal conduct is a serious offense," O'Connor stated. "It undermines
society's interest in public safety, particularly where, as here, the person
concealing the crime is a practicing attorney and the crime relates to the
sexual exploitation of children."
Casale said later that it would have been hard to deny that Russell did not
commit misprision. It was a case of a good lawyer who made a bad decision,
he told the judge, saying, "This was situationally aberrant behavior."
Russell should have turned down the case, Casale said, but also made a
mistake by destroying the computer which he could have put in a safe in case
of a future investigation.
"The moral of the story is that if you have a special interest in a
situation, you step aside," Casale said. "Doctors don't operate on their
own kids."
Russell agreed to surrender his right to appeal his sentence in exchange for
a reduced sentence of 14 months in jail, a one-year-period of probation, and
a $20,000 fine. He had faced up to 40 years in prison if convicted at trial
of both counts, and fines of up to $1 million.
He said he was willing to accept the sentence, which is scheduled to be
meted out Dec. 17, if it allowed him to return to practicing law in the
future, he said in an interview last night.
"My obligations to obey the law and to serve my client as it turns out in
hindsight were in conflict," Russell said. "And there is a price to be
paid."
The settlement averted what may have been a prolonged trial challenging the
use of the Sarbanes-Oxley Act, which had not been used in this manner
before. But earlier in the proceedings Judge Nevas rejected Casale's motion
to dismiss charges against Russell, which argued that the prosecution
misapplied Sarbanes-Oxley to Russell's behavior, saying Sarbanes was enacted
to target the preservation of corporate records and not contraband such as
drugs and pornography. The question remains open.
"That will be somebody else's banner to carry," Casale said.
In addition to his criminal case, Russell also faces possible administrative
discipline from state judicial authorities who will weigh whether Russell's
actions should result in his being suspended or disbarred from practicing
law.
"This is a unique case and we're going to have to look at it," said Marc A.
Dubois, Chief Disciplinary Counsel for the state.
Unlike New York State, a felony conviction does not result in automatic
disbarment in Connecticut, Dubois said, and disbarred attorneys can usually
apply for readmittance after a specified time.
"Felony convictions usually result in discipline but not always disbarment,"
Dubois said. "He could be suspended for a specific period of time after
which he could practice law. There are a fair number of attorneys in the
state of Connecticut practicing law that are convicted felons."
.
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