What Do You Do When Preserving Evidence Is Labeled 'Possession' And Destroying It Is A Felony?

Have fun with this hypothetical. A shared computer is found to contain child porn. What do you do?

Houston criminal defense lawyer Mark Bennett considered this hypothetical from a defense lawyer's standpoint. At this point, there is (possibly) no investigation already in progress (at least none the client or lawyer are aware of) and there's no way to say definitively who's responsible for the images. What do you tell your client?

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 isn't entirely a hypothetical situation. Scott Greenfield's blog details a 2007 case involving exactly this sort of situation.

[Connecticut attorney Philip] 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 congregants (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.

Back to Bennett, who notes that under Texas law, this is a felony only if the destruction of evidence is done with knowledge of a "pending or in progress" investigation. The problem is that -- in cases involving child porn -- federal law prevails. But not a federal law dealing with child porn possession (which would apply if the offending files remained intact) but rather a law crafted to deal with companies' financial impropriety: Sarbanes-Oxley. This law says that destruction of evidence -- with or without knowledge of a pending/ongoing investigation -- is a federal crime.

Damned if you do. Damned if you don't. The only stipulation is that an investigation is "foreseeable." And child porn on a hard drive pretty much makes an investigation "foreseeable." Turn it in to the cops, and you can guarantee an investigation will start immediately. Depending on how the files were obtained, it's entirely possible that the IP address is already on investigators' radar. Throwing the computer into the nearest dump or off a bridge just to rid yourself of someone else's wrongdoing makes you a felon.

Now, whether the child porn is the client's own, or something he/she discovered (purchased a second-hand computer/shared one with with other household residents), the client needs help. But what help can any lawyer provide? There's no answer that allows for the avoidance of felony charges.

This tainted hard drive is, in and of itself, lawbreaking. So is the deletion of the files. So is simply removing it from your possession. A lawyer really has only one course of action, thanks to Sarbanes-Oxley.

You could, of course, instruct your client on certain aspects of the law: possession of child pornography is a crime; tampering with evidence is a crime; without the hard drive the government is likely to have a hard time proving that you tampered with evidence or that you possessed child pornography; if the government gets its hands on the hard drive they won't have a hard time proving that you possessed child pornography, which will certainly land you in prison; don't talk to anyone about the contents of the hard drive.

There will be those that argue that anything involving child porn shouldn't have an easy out, even if it's a law supposedly targeting financial wrongdoing that's running around locking down all of the escape routes. But there are situations in which an innocent person could find themselves in this position and have no option but to choose the least personally destructive outcome.

And because the theoretical involves child porn (instead of less universally-reviled subject matter), there will always be other "easy" solutions presented.

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?

There is no "out." The government makes every investigation "foreseeable." The inadvertent discovery of illegal images doesn't take away this possibility. A lawyer can't (or shouldn't) encourage someone to break the law, but in cases like this, the only option is to mitigate the damage. The safest bet for anyone -- innocent or not -- is to destroy the evidence. But what sucks is that the innocent face charges for possessing something they never wanted and will often resort to destroying it in hopes of not being branded sexual offenders for the rest of their lives.

And it doesn't have to be child porn. It could be anything illegal. The government isn't here to help, much less not indulge in messenger-shooting. Case in point, the Iowa man who called the cops about a backpack he found containing drug paraphernalia. Just keeping it meant being in possession of illegal items. Throwing it out (which never occurred to the finder) would destroy evidence. And calling the cops did nothing more for him than turn his house into a meth lab in the eyes of the DEA. The police repaid his good deed by listing his house on the National Clandestine Laboratory Register. Being a good citizen meant virtual condemnation of his home because drug paraphernalia had been "found" on the premises.

In light of this, it would appear that the government prefers people destroy evidence of other people's crimes, rather than be upstanding citizens. That route leads to lighter sentences and less horrendous outcomes. Sure, we need laws in place to prevent the destruction of evidence, but more than that, we need to offer better protections for those who voluntarily hand over evidence of criminal activity. But there's nothing there to delineate between preserving evidence prior to contacting authorities and a possession charge. The government plays it safe and treats both equally, just to avoid the possibility of being duped by actual criminals.

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