Indicted lawyer wants charge dismissed, saying feds overreached

NEW HAVEN, Conn. --A prominent defense attorney charged with destroying evidence in a child pornography investigation said Thursday authorities are overreaching, expanding a law in a way that could make parents, employers and others vulnerable to such prosecutions.

Philip Russell was charged Feb. 16 with destroying a computer that contained child pornography at Christ Church in Greenwich. Former President George H.W. Bush attended the church while growing up and funeral services for his parents were held there.

Russell, the former attorney for the church, is accused of obstructing an FBI investigation that led to the January conviction of the church's music director, Robert Tate, for possessing child pornography.

Russell was charged under the Sarbanes-Oxley Act, which Congress passed in 2002 after a wave of corporate accounting scandals to make it easier to prosecute such cases. He faces up to 40 years in prison if convicted.

Russell filed court papers Thursday urging a judge to dismiss a count that involves the Sarbanes-Oxley Act, saying the law was meant to prevent corporate document shredding.

The law made it easier to prosecute obstruction of justice by requiring only that an investigation was foreseeable rather than already pending.

If the government's view of the law is correct, many others could face obstruction charges, Russell contends.

"A parent who finds pictures of 'naked boys' in his/her child's backpack would also face a 20-year federal felony for obstruction ... if he/she throws the pictures out to insulate the child from future legal difficulties," wrote Russell's attorney, Robert Casale.

"Similarly, if the government is correct, an employer who finds child pornography on the computer of an employee who has just retired after decades of loyal service would be committing an act of obstruction if he/she deletes these images from the computer to spare all concerned unseemly embarrassment and possible prosecution," Casale wrote.

While legal experts agree that lawyers can't destroy evidence, they are concerned that prosecutors' use of the federal law will pressure defense attorneys to betray their clients' confidences and report potential evidence to authorities or risk prosecution themselves.

Russell acknowledges he destroyed the computer, but says he had no reason to believe the matter was under investigation or that it would lead to an investigation.

"Phil Russell's conduct may have been ill-conceived, but it was not criminal," Casale wrote.

Prosecutors declined to comment on the latest court papers, but have defended Russell's indictment.

"Those who possess child pornography or hinder the prosecution of those who do by destroying evidence and impeding investigations will be prosecuted, particularly when the obstructionists are attorneys and officers of the court," U.S. Attorney Kevin O'Connor said last month.

The trial in April could spell the end of a career for Russell, whose recent clients included Andrew Kissel, a wealthy Greenwich developer charged in a multi-million dollar real estate fraud case. Kissell was found slain in his home last year days before he was to plead guilty.