The sad story of the prosecution of Philip Russell has taken another dangerous twist along the prosecution path.  As has been discussed in previous posts, here, here, and here, Philip Russell is the Connecticut criminal defense lawyer indicted for a SOX violation stemming from the destruction of evidence of child porn at the behest of his client, Christ Church, when there was neither charges nor investigation pending.

Now, according to this AP story, federal prosecutors have filed a brief using Russell’s prior legal word and advocacy to show that he knew or should have known that an investigation was forthcoming.  Even more specifically, they will use a tape of Russell in an earlier case where he argues that child pornography should be turned over to federal authorities.

This new twist in the government’s approach creates two separate and significant problems.  The first is the separation between what a person says in his role as lawyer, the legal representative of another person, and his personal views.  The second is the higher level of attributed criminal responsibility that the feds are urging, which would make criminal defense lawyers a target of potential criminal liability than any other discrete group because of their unique position of standing between accused and the government.  In other words, we know things that other people don’t about bad things that happen in the world, and the government wants to make us responsible to them for our increased level of knowledge.

As attorneys, we spend our days arguing on behalf of our clients.  We don’t necessarily agree with what our clients have done. Indeed, we often find their conduct horrible, but that’s the nature of our job.  We don’t limit our representation to “happy” criminal cases, and our representation is hardly a sanction of crime or criminal.  It is a constitutionally necessary role, and we fulfill it without thought that any reasonable person would make the mistake of confusing our work with our personal view of right and wrong, morality or legality. 

In order to do that job effectively, as the government demands we do when they administer an oath to us that requires us to fulfill our constitutional mandate, we develop arguments and strategies designed to serve our clients’ goals.  A viable strategy in one case may be the opposite of the strategy we employ in another.  In this line of work, it is hardly disingenuous to make conflicting arguments in different cases.  It’s often a necessity, and zealous representation would require no less.  I’ve never heard a judge criticize us for arguing different theories in different cases.  They may not find us particularly persuasive when that happens, but never disingenuous.

The government, alas, thinks otherwise.  They want to use our words as advocate to pin us to the wall as human being.  When we argue on behalf of a client, according to the government, our words become a reflection of our personal views and they want lawyers held personally responsible for behaving consistently with positions taken on behalf of clients.  This makes for some very bad mojo, since we can’t argue for clients if our words will come back to bite us on our personal butt.

Also in our jobs, we learn things.  We learn lots of things, many of which are unsavory.  Our clients have often done bad things, whether different from what the prosecutors’ think, or worse.  Sometimes far worse.  This too is the nature of the job.  We learn where bodies are buried, sometimes literally, and we are forbidden to speak of it.

But the Russell prosecutors want to speculate on the bad things that are hidden away in a lawyer’s head.  Since he’s represented child porn defendants before, he has special knowledge about such things that increase his measure of understanding of the crime, investigation and prosecution.  Where an ordinary person would have no reason to believe that a particular instance of wrongdoing would result in an investigation, or would have no reason to know that a piece of evidence would “foreseeability” become the target of federal agents, the attorney would.  He knows things, according to the prosecution, and his liability should be increased based upon the things he knows.

Does Russell know things?  I’m sure he does.  But exactly what he knows should never be the subject of speculation by the prosecution or the Court.  Does he know that people sometimes get investigated?  Who doesn’t?  Does the government know how many people who commit crimes never get investigated?  Aha!  Got ’em there.  They have no idea how “foreseeable” an investigation and prosecution may be, because they only know about the ones they go after.  Criminal defense lawyers know about the ones that get away.  The prosecution’s theory here is based upon the flawed assumption that they know what Russell knows.  They don’t.  The judge doesn’t.  And they never will.

But there’s a bigger issue at stake here.  Criminal defense lawyers stand in a weird spot, between the law and the criminal, putting them at peculiar risk of being viewed externally as coming too close to the line in the course of doing their job.  It happened here.  It’s happened elsewhere.  The lines is often far blurrier than outsiders realize, since they lack the view from the criminal defense lawyer’s perspective.  Remember, we know more about the defendant’s side than others. 

Prosecutors think that they know it all.  They think they have unearthed all the nasty secrets and have a global view of wrongdoing.  They sometimes do, but more often don’t.  And even when they have all the information in front of them, they still don’t grasp the significance because they lack the experience to fully appreciate what they are looking at.  Remember, prosecutors are often white bread kids who’ve never seen life from the street side.  They don’t teach that at Harvard Law School.  Maybe they should.

The upshot of the Russell prosecution is to create an entirely new standard of criminal liability especially for criminal defense lawyers, putting us in far greater jeopardy of perceived criminal involvement than any other discrete group in America.  Do you think that might have a chilling effect on our ability to represent defendants?