Poor Professional Judgment?

When a lawyer is representing a client in an exigent circumstance and makes a difficult choice in good faith, he should be afforded a wide range of professional discretion. To second-guess the lawyer’s judgment after the fact, in either scholarly deliberation or by a criminal indictment, may well be unfair. With that caveat in mind, circumstances present in the Russell case suggest that the lawyer’s decision to destroy the evidence may have been poor professional judgment:

First, the computer involved did not belong to the client church non-offender but to the choirmaster culprit. The lawyer’s duty was only to

U.L.REV. 853, 860 (2011).

227. TROY STABENOW,FED.PUB.DEFENDER OFFICE, DECONSTRUCTING THE MYTH OF CAREFUL

STUDY:APRIMER ON THE FLAWED PROGRESSION OF THE CHILD PORNOGRAPHY GUIDELINES, 26–

29 (rev. ed. 2009), available at http://www.fd.org/docs/Select-Topics---sentencing/child-porn-july-revision.pdf; see also United States v. Dorvee, 616 F.3d 174, 187 (2d Cir. 2010) (observing that, had defendant “actually engaged in sexual conduct with a minor,” his guidelines range sentence could have been considerably lower than for his child pornography conviction without any contact with an actual minor); United States v. Henderson, 649 F.3d 955, 965 (9th Cir. 2011) (Berzon, J., concurring) (observing that the federal sentencing guideline “often recommends longer sentences for those who receive or distribute images of minors than the applicable Guidelines recommend for those who actually engage in sexual conduct with minors”).

the church and thus reporting the choirmaster for possession of contraband would not have placed the lawyer in the position of betraying a client to law enforcement. Moreover, by taking possession of that computer, the church and its employees had taken possession of contraband—innocently to be sure. To avoid any later accusation of illegal possession of that contraband by the church employees, and to strengthen the defense of innocent and temporary possession, the lawyer should have advised the church to disassociate itself from the contraband by turning it over immediately to law enforcement.

Second, and for similar reasons, one may question the wisdom of a lawyer assuming possession of a non-client’s property, especially for the purpose of destroying it (even assuming that third party’s consent).

Indeed, once the decision had been made not to report the matter to the police (itself a dubious course of action), the best alternative probably was to advise Tate to obtain legal counsel while passively allowing him to retain and remove his own possessions, including the offending laptop.

Had Tate taken and destroyed his own computer hard-drive—even if he later told federal authorities that Russell had been aware of his possession of child pornography but not prevented him from removing his own possessions from the premises—a federal prosecution of Russell is hard to imagine. Indeed, at Russell’s plea hearing, the federal prosecutor went so far as to suggest that perhaps Tate would have a right to restitution from Russell for the destruction of Tate’s computer,²²⁸ which only confirms that even the prosecutors in this case did not see Russell as having a possessory right or affirmative duty with respect to handling of the computer.

Third, the wisdom and morality of the decision of Russell and church leaders not to report Tate to the authorities can be questioned as well.

Given the great damage that has been done to more than one religious institution when church officials failed to take immediate steps to thoroughly separate themselves from illegal behavior by ministers and other church employees relating to children, including reports to law enforcement, it is difficult to be sympathetic to the church’s fear of embarrassment. At Russell’s sentencing, the judge admonished Russell for acceding to the church’s hope that the whole matter would just “go away.”²²⁹

228. Change of Plea Hearing, supra note 142, at 16 (“The government’s understanding is that Mr.

Russell destroyed a computer. Granted, it had child porn on it. It may be that Mr. Tate would ask the Court for restitution.”).

229. Cowan, supra note 150.

Moreover, at such an early stage, church leaders may not have all of the information to be sure that an employee’s misconduct in one respect was not accompanied by other misconduct in similar respects. That of course was true with a powerful emphasis in this case. While even now, years later, there appears to be no indication that anyone belonging to the church was abused directly by Tate, prosecutors did claim that Tate hired and retained another employee who abused a child in the choir without reporting it to police.²³⁰

Fourth, although neither Russell nor others in the church were aware of this at the time, choirmaster Tate’s misconduct was far worse and more extensive than a handful of questionable images found on his computer. As the later investigation established, mostly from Tate’s own confessions, Tate had preyed on children sexually in the past, including traveling abroad to have sexual contact with minors and even bringing child prostitutes to his apartment at the church.²³¹ Had Russell known the full scope of Tate’s sordid behavior, he would have been much more likely to foresee a criminal investigation.

But he did not. The fact remains that Russell and church leaders knew only that a longtime choirmaster, beloved by many parishioners, had downloaded several images of naked children.²³² Even had Russell and church leaders conducted a further investigation, there is little reason to suppose that they would have learned anything more. There is no indication that Tate ever abused a child in the parish or allowed anyone else in the parish to learn about his ongoing misconduct. While the judge at sentencing excoriated Russell for his bad judgment, focusing on Tate’s sickening behavior, the judge did not suggest that Russell was aware of these matters or even that he would have uncovered them by further investigation. Even at his sentencing, when he confessed to wrongdoing, Russell continued to insist that he “did not foresee that there was gonna be law enforcement involvement.”²³³

And it is very easy to find fault in Russell’s choices when sitting comfortably in a faculty office (or, I would be so bold to say, sitting behind a bench). The church did not want the matter to become public.

230. Church Choir Director Hired a Pedophile, Prosecutors Say, N.Y.TIMES (Feb. 20, 2008), http://www.nytimes.com/2008/02/20/nyregion/20molest.html.

231. Cassidy, supra note 170; Cowan, supra note 150.

232. As Russell later argued in a motion in limine to exclude evidence about Tate’s sexual history with minors, there is no evidence that Russell or anyone at Christ Church knew about Tate’s other behavior. Motion in Limine at 1, United States v. Russell, 639 F. Supp. 2d 226 (D. Conn. 2007) (Crim. No. 3:07–CR–31).

233. Change of Plea Hearing, supra note 142, at 37.

Whether one is sympathetic to the fear of reputational harm, the client’s objective remains central to any lawyer’s decision. And given that the laptop contained contraband, Russell could not simply store it away somewhere without risking criminal sanction for unlawful possession of child pornography. Russell later described his decision as “impulsive, lacking in any forethought or deliberation,” coming within an hour after ending up with the computer in his hands.²³⁴ Russell had to make a call on the fly, without the luxury of time and contemplation.²³⁵