September 29, 2007
Destroying Computer - Misprison of a Felony
Destroying a computer with evidence of pornography can land you a conviction. A press release of the U.S. Attorney for Connecticut reports of a plea "to one count of misprision of a felony" by an attorney who "admitted that he was aware that an individual had committed a child pornography crime, yet he failed to report it to authorities." The release notes that he "then concealed the crime by destroying a laptop computer containing the child pornography."
The attorney was acting as attorney to a church. According to the press release, the attorney told the individual with the improper items on the computer that "this is serious business,” “this is a federal crime that carries a minimum of five years in jail,” and “you need a lawyer.” The attorney for the church then "destroyed and concealed ... [the] laptop." This attorney then "failed to report to law enforcement that [the person he advised to secure legal counsel], who was not his client, had possessed child pornography."
At least the charge was not a SOX amendment charge (see here)
Every attorney who represents an entity of any type needs to be aware of this case. It is sad to see a criminal conviction being given to an attorney based upon these facts. Would a disciplinary violation have been a better resolution?
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Plea Agreement - Download plea_agreement.pdf
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If the crime being concealed had been somthing other than one involving criminal sexual acts committed against a child then probably yes.
"Would a disciplinary violation have been a better resolution?"
Posted by: none | Oct 2, 2007 12:08:22 PM
Ellen: Sorry I didn't see your post earlier. The misprision plea in this case resulted from the pressure and risk imposed on this attorney by the fact that the U.S. Attorney's Office *did* bring a Sarbanes-0xley indictment (18 USC 1519, a 20-year felony with horrendous Guidelines) against him, the judge had denied a motion to dismiss, and the government would not otherwise relent from bringing the case to trial. All this despite substantial ambiguity in that new and untested statute as to whether it applies in this sort of case, where there is absolutely no criminal or other governmental investigation underway at the time the record or object is destroyed. (Does 1519 so clearly overrule Arthur Andersen?) Here the attorney finds his client (the church-employer) in what appears to be innocent possession of contraband, and there is no way to turn the "evidence" over to the authorities without risking incrimination of the (apparently) innocent client. Imagine that instead of a laptop with illicit pix it were a marijuana cigarette or vial of crack that the pastor had found in the office of a church employee. Could the lawyer (or the pastor) not destroy that contraband rather than call the DEA (and risk self-incrimination, however unwarranted), or just to not "get involved" in the hassle of reporting a crime, or because the church-employer believes in redemption more than punishment and chooses not to invoke the criminal justice system voluntarily? This case (and this law, if it was properly applied) just stinks, and makes me sad. I'm proud of the defendant for taking it as far as the motion to dismiss, but as for taking a misprision deal on the eve of trial, rather than stand trial, hope for acquittal, and then if necessary pursue the dismissal issues on appeal, I can't blame him. As he was quoted in the newspaper as saying, "I'm a lawyer, not a martyr." I'd love to see a fuller analysis from you and/or Prof. Henning of the substantive criminal law, the Fifth Amendment, and the professional ethics aspects. (Was there a clear disciplinary violation, for example?)
Posted by: Peter G | Oct 5, 2007 8:55:11 AM
The mistake made here is that he DESTROYED the laptop, which is mopping away evidence of a federal felony crime (child porno).
Had he just stayed quiet, nothing could be brought against him. You need an act of concealment for a misprision charge (not mere failure to report).
Probably nobody would have discovered the porno had they just left the laptop in the storeroom.
Posted by: Shiv | May 12, 2008 2:28:20 PM