The test of whether a provision of the Sarbanes-Oxley law can be used to prosecute sex crimes is set to begin Friday in Bridgeport. This is a big deal, because if the prosecution of criminal defense attorney Philip Russell is successful, it will for the first time introduce the concept that attorney’s can be prosecuted for actions that occur before an investigation has started. The implications are far reaching, which is why the Connecticut Criminal Defense Lawyers Association has filed a brief in this. While criminal defense attorney’s are more acutely aware of the implications, non criminal attorney’s should be wary too.
From the Advocate:
“Although a relatively recent enactment, the uses and contour of (the law) are becoming established,” Jongbloed wrote in his motion.
Jongbloed argues that the act of destroying the computer by itself showed that Russell recognized a criminal investigation was a possibility.
According to the indictment, in early October, church officials sealed and wrapped Tate’s computer, treating it as evidence. But Russell on Oct. 9 took Tate’s computer and “corruptly altered, destroyed, mutilated and concealed it” to prevent federal investigators from retrieving child pornography, according to the indictment. In the indictment, authorities contend they began investigating Tate the day before.
Jonathan Schoenhorn, president of the Connecticut Criminal Defense Lawyers Association, said defense lawyers consider the use of the 2002 Sarbanes-Oxley law in Russell’s indictment as inappropriate, and are puzzled by the idea that Russell could be imprisoned for destroying child pornography or other contraband.
“As far as we are concerned Sarbanes-Oxley was never intended to apply and this seems like an effort by a justice department already hostile to lawyers that is trying to deputize attorneys into becoming handmaidens of the FBI,” Schoenhorn said.
The organization has filed a brief asking the judge to dismiss the charges against Russell, arguing that legal precedent has only allowed the prosecution of defendants for obstruction when there was proof they deliberately hid incriminating materials from investigators. After Tate was arrested in California and indicted in November, a group of church members including the U.S. president’s aunt, Elizabeth Bush, attended court hearings to support him.
When Tate pleaded guilty in January, a group of supporters including church members helped him post his $500,000 bond.
Tate’s sentencing, originally scheduled for April, has been continued until Sept. 13, as he receives treatment for sexually deviant behavior at Alpha Human Services in Minneapolis, Minn.
Tate’s attorney, Francis O’Reilly of the Bridgeport-based O’Reilly & Shaw law firm, declined comment last week.
sourceAdvocate, Hearing on destroyed evidence set to begin, By Martin B. Cassidy, July 23 2007
