Misprision

I recently ran across a case from last year in which a lawyer pled guilty to misprision of a felony for destroying “a laptop containing pornographic images of children”. Alison Leigh Cowan, Lawyer Admits Destroying Evidence of Pornography, New York Times (September 28, 2007).

It’s not a reported judicial opinion; the case resulted in a plea, which the defendant has apparently not contested.

It’s an unusual case, I think, in two respects: One is the misprision of felony charge, which is not all that common. The other is that it was a lawyer who destroyed the evidence and wound up being charged for doing so.

Let’s start with the charge. Misprision of felony, as Wikipedia explains, at common law consisted of not reporting a felony, of which you were aware, to the authorities. The crime still exists, but it’s changed a bit.

The lawyer in this case was charged with the federal version of misprision of felony, under this statute:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S. Code section 4.

According to a Department of Justice Press Release, here are the facts that resulted in lawyer Philip D. Russell’s being charged with misprision of felony:

RUSSELL is admitted to practice law in Connecticut and has specialized in criminal and civil litigation in state and federal courts. On October 7, 2006, an employee of a church in Greenwich, who at the time was working in the church’s choir program, discovered images of naked boys on a laptop regularly used by Robert F. Tate, who had been the choirmaster and organist at the church for approximately 34 years. On October 8, 2006, church officials sealed and wrapped Tate’s laptop computer, treating it as evidence. RUSSELL represented the church with respect to Tate’s conduct.

On October 9, 2006, RUSSELL and two church officials met with Tate and confronted him about the images found on his laptop computer. Tate acknowledged that the images on the laptop were his, that they were inappropriate, and that they were personal to him. RUSSELL told Tate, words to the effect, that `this is serious business,’ `this is a federal crime that carries a minimum of five years in jail,’ and `you need a lawyer.’ RUSSELL then provided Tate with the name and telephone number of a criminal defense attorney, and Tate said he would resign from the church.

RUSSELL then took possession of Tate’s laptop computer knowing that it contained child pornography and returned to his law office. At his office, RUSSELL told an employee to go outside and RUSSELL then destroyed and concealed Tate’s laptop. RUSSELL failed to report to law enforcement that Tate, who was not his client, had possessed child pornography.

Press Release, supra. (The Times article says Russell “pulverized” the laptop.)

In February of 2007, a federal grand jury indicted Russell for obstructing justice and destroying child pornography. A trial on those charges was set to begin in October, but Russell pled to a new charging document – an information – that charged him instead with one count of misprision of felony. Press Release,, supra.

On December 17, 2007, the court sentenced Russell to six months of home confinement plus a fine of $250,000 and the requirement that he perform some period of community service. The judge cited his “years of good service” in letting him avoid prison time.

I find the case interesting because I cannot imagine what was in Mr. Russell’s mind. I can’t understand why a lawyer would so egregiously breach his professional and ethical obligations. I can’t understand why he would go to such extreme measures to protect Mr. Tate; and I can’t understand why he would be so foolish as to destroy evidence when a number of people knew it was out there. His behavior is incomprehensible, at least to me, on pretty much every level.

Mr. Tate, by the way, was charged with possessing child pornography, pled guilty and, after spending several weeks at a treatment center for “sexually deviant behavior,” was sentenced to serve 5.5 years in prison. He must also pay a $50,000 fine and participate in sex offender treatment.

Our focus, though, is on Mr. Russell and, specifically, on the misprision charge. When I first heard about the case, I wondered why he was charged with misprision instead of obstruction of justice, which is the usual charge. There are a LOT of obstruction of justice provisions in the federal criminal code, but here’s the one I assume was used in Mr. Russell’s indictment:

Whoever corruptly . . . alters, destroys . . . or conceals a record . . . or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding . . . shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S. Code section 1512(c). Here, “corruptly” essentially means “acting with an improper purpose,” i.e., with the purpose of obstructing the proper administration of criminal justice.

So Mr. Russell was charged with obstruction of justice, which, as I said, is the usual charge when someone destroys (or creates) evidence in an attempt to frustrate an investigation or prosecution of federal crime. According to the New York Times article, he was charged with 2 counts of obstruction of justice in the indictment, which means he would have faced prison if he had been convicted. Also according to that article, probation would not have been an option, and the probable sentence would have been 27-33 months in prison. New York Times, supra.

The sentence he could have gotten for pleading to misprision was 8-14 months but, as I said, the court was lenient because of his “prior service.” He also seems to have accepted responsibility, admitting what he did but saying that he did not “foresee” that law enforcement was going to be involved in the case . . . which kind of answers the questions I posed above . . .

I can’t imagine, though, why a lawyer who had been handling at least some criminal cases and knew enough to tell Mr. Tate what the possible sentence was for possessing child pornography would not have thought law enforcement would get involved here. Anyway, just a cautionary tale . . . if there is any indication law enforcement is looking into something, don’t destroy anything that could even potentially constitute evidence, not for yourself and not for anyone else.