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Wednesday, May 20, 2015

Between A Rock And A Hard Drive by Scott Greenfield

Between A Rock And A Hard Drive
Let’s say a client screwed up. That’s one of the reasons they come to a lawyer, since they avoid us like the plague otherwise. They downloaded some porn and, included within it, was pornography involving a minor. That wasn’t their thing, and they, like you, are disgusted and appalled by it. Yet, there it is, on their hard drive, with the trail from the file sharing site leading straight to their computer.

Mark Bennett raises the dilemma.


It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

This was the situation faced by Connecticut lawyer Phillip Russell:


Russell’s client, the Greenwich Christ Church (not a bad client, I would say), did what any self-respecting church would do when it found child pornography on its church computer: It turned to its lawyer for help. No fed was knocking on the church door. There was no hint of an investigation. There was no reason to believe that anyone would ever know that some sick, disgusting human being using this computer purchased with monies from the tithing of its congregents (I’m making this part up, since I have no idea where the money came from to buy the computer and in Greenwich, they could just as easily live off the interest from the Church’s trust fund), would download photographs that would sicken any normal human being.

So Russell finds himself in the position of having to decide what to do with this computer. The Church no doubt wants its computer back, since it wouldn’t have gotten the computer if it didn’t have any need for it, But the Church does not want this pics on it. Russell, in the meantime, knows of the photos as a result of confidential communications (no argument from any source about whether this was as confidential as it comes) and has to decide what to do about it. He can’t keep the kiddie porn pics, for then he would be violating the law.

So Philip Russell does the only reasonable thing possible. He deletes the horrific photos. BAM, he’s indicted for obstruction, having destroyed evidence.

And in case you’re wondering, this case, like Yates, fell under Sarbanes–Oxley, prohibiting the destruction of evidence. Though it’s clearly closer to the nature of prohibited destruction than fish, it’s also applied here to kiddie porn, though SOX was directed toward financial crime. Well, that was what was meant, anyway. The web of law is a curious thing.

What Bennett raises is an unsolvable problem.


You can’t tell your client to do the smart thing and destroy the hard drive. (Why is it smart? Because the penalty for possessing child pornography is much more severe than the penalty for tampering with evidence, and if the client destroys the hard drive properly and keeps his mouth shut there will be no evidence that he has tampered with evidence.) You can’t tell your client to do the dumb thing and keep the hard drive. What do you do?

We are problem solvers. We hate for the answer to be, “I can’t answer that.” But “I can’t answer that” is the only possible advice in this situation.

Most clients won’t really give a damn about this legal and ethical dilemma, and who can blame them? They are in deep doo doo, and need a way out. They’ve come to a lawyer to find that way. They have a constitutional right to the assistance of counsel, and there you are, counsel. So counsel them, right?

It’s perverse that the law, which is intended to serve to guide us away from conduct that society deems wrongful, denies us a way out when we inadvertently find ourselves in a Catch-22. And this scenario is by no means limited to child pornography, but would apply, at least theoretically, to the destruction of any contraband, the possession of which is itself illegal.

The dilemma arises from the back end desire to not only prevent crime, but to punish it. To do so requires prosecution, and to be successful at prosecution, proof is needed. Thus, preserving the evidence is critical to the government’s ability to prosecute and punish, and the only bludgeon in the government’s arsenal is to criminalize the destruction of evidence. Problem solved. Problem created.

The implicit solution, of course, is that while a lawyer cannot counsel a client to commit a crime, he can lay out the law, the relative punishments, the concerns and the options that he cannot, and does not, suggest the client employ. After that, the client walks away and does what he pleases, without the lawyer’s approval or knowledge. Yeah, it’s an unacceptable solution, and itself problematic, as plausible deniability which bears the stink of conscious avoidance is hardly a sound defense.

Some will respond to this dilemma with the facile, “so don’t download porn and you won’t have this problem.” Aside from the fact that this isn’t just a porn problem, people are allowed to enjoy porn. Just not kiddie porn. Plus, people make mistakes, sometimes inadvertent, without any evil intent. Plus, people do stuff with evil intent, which they thereupon regret and seek to undo. Is it not societally beneficial for people who make a mistake to foster regret and the chance to make things right?

But, some self-righteous prig will ask, if this wasn’t the case, wouldn’t you scum-sucking criminal defense lawyers be allowed to tell criminals how to commit their crimes and avoid prosecution and punishment? Yup. That would also happen. That’s the price. That’s why it’s a dilemma.