Lawyers across the country expressed outrage and befuddlement to the press and on blogs and in email list-serve discussions. Stephen Gillers, New York University Law School professor and one of the nation’s most respected and sought-after experts on legal ethics, explained the urgency of the situation to an Associated Press reporter: “Every criminal defense lawyer in the country has to be alarmed at the indictment,” said Gillers. “It’s going to upset a lot of assumptions about how lawyers can represent clients. I think this is a boundary-pushing case.”7 “This is indeed an upsetting case,” observed another lawyer. “The government cannot argue both (1) simple possession of child pornography is itself victimization [of children] … and yet (2) criminalize the termination of the victimization by destroying the images.” Added the lawyer: “It is as if the primary purpose of the criminal law is to create prosecutions, rather than encourage conforming behavior to the law.” The lawyer then asked the question from the vantage point of a parent: “Does the parent who finds their child’s ‘stash’ only have the choice of turning their child into the police or becoming an accomplice themselves?”8
The vagueness of the statute as it was used in the Russell prosecution raised yet another problem. This was highlighted by a remark made to the Associated Press reporter by Jon Schoenhorn, president of the Connecticut Criminal Defense Lawyers Association. Schoenhorn focused on the perversion of the attorney’s historically understood role as trusted legal adviser to his or her client. “The most troubling aspect,” Schoenhorn told the reporter, “is it tried to make lawyers shills or hand maidens for police and government investigators.” In other words, anything that the lawyer does that makes the prosecutor’s job harder is seen as a crime. Local criminal lawyer Lindy Urso put it best when he told a reporter: “I don’t like to consider my own interests when I am defending a client.” He questioned whether the statute “encourages attorneys to weigh protecting their clients or themselves.”
The problems with the prosecutor’s interpretation of the statute can be spun endlessly. Meanwhile, Philip Russell stood accused of a career-wrecking felony. Russell’s lawyers, Robert M. Casale and Thomas Williams, had advanced these arguments when they asked the court to dismiss the indictment. At bottom, they argued, the prosecution’s oblique interpretation of the statute would force attorneys (who, unlike ordinary citizens, have a constitutionally mandated duty to represent clients zealously) to become lapdogs to prosecutors.
To the prosecutor, however, there was no lack of clarity in the statute and no perversion of the lawyer’s historic role. “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,” Connecticut U.S. Attorney Kevin O’Connor, who spearheaded the investigation, told Greenwich Time. In the brief9 he filed opposing Russell’s request that the judge dismiss the indictment, O’Connor claimed that “this statute is specifically meant not to include any technical requirement…to tie the obstructive conduct to a pending or imminent proceeding or matter.”10 The statute, explained O’Connor (with no apparent sense of the absurd or the outrageous), “does not require corrupt intent.”
The defense team pointed out that Russell had good reason to destroy the hard drive. They cited several recent cases in which lawyers and experts were threatened with prosecution for the mere possession of child pornography, even for entirely proper purposes. In one brief, Russell’s lawyers referred to a 2003 case in which a defense expert was given permission, by a state trial judge in a state child pornography prosecution, to copy the computer hard drive in order to do an analysis of the images.11 A federal prosecutor threatened defense counsel that such possession exposed the defense team to federal prosecution, since federal law does not make an exception for such possession by defense lawyers and experts. In another example cited by Russell’s lawyers, “a prosecutor in Nevada threatened to arrest a defense attorney for possession of child pornography even though the judge in the case had previously authorized counsel to possess the disputed images in order to assist in the preparation of his client’s defense.”12 Under circumstances such as these, it is hard to fault Attorney Russell for destroying the computer drive.
None of these arguments held sway. After the judge denied Russell’s motion to dismiss the indictment, the beleaguered lawyer hedged his bets and entered into a plea bargain: the Sarbanes-Oxley indictment was dismissed and Russell instead pleaded guilty to a less serious charge of misprision of a felony. The damage to Russell’s life was thus minimized, although his career likely would never fully recover. But, from society’s vantage point, a very troublesome legal precedent was set.
The misprision statute, which forbids concealment of “knowledge of the actual commission of a felony,”13 is potentially as troublesome for attorneys as the obstruction provisions of Sarbanes-Oxley. It has been judicially interpreted to require some active element of misleading investigative authorities rather than simply failing to report a crime.14 But when the lawyer is representing a client with whom he has a relationship characterized by long-standing legal principles of confidentiality and loyalty, drawing that line can be extremely difficult, if not impossible. And neither the Supreme Court nor Congress has lent much clarity to the matter.
Even though it would have signaled a revolutionary change in the definition of the “attorney-client privilege,” the application of the misprision statute to Russell’s situation went unquestioned because it was part of a plea bargain aimed at averting an even more serious charge. If anything, it is an essential part of a lawyer’s job to lawfully withhold information from prosecutors, or from anyone who might use it to harm his or her client’s interests. Our system of justice is an adversary system, where the lawyer must adhere to an attorney-client privilege of confidentiality. This privilege is a logical extension of the defendant’s Sixth Amendment right in a criminal case to enjoy the effective assistance of counsel, and derives from an even older English common law doctrine protecting the attorney-client relationship in both criminal and civil matters. Thus, the application of the federal misprision statute to what a lawyer learns directly from a client or even elsewhere while representing that client is a legally delicate matter. To whom do lawyers have a primary duty and owe their loyalty—clients or prosecutors?
Until these questions are resolved either by the Supreme Court or by congressional action, lawyers for clients who possess contraband will have no way of knowing what to do. This will leave them to the tender mercies of federal prosecutors. Departing from the status quo in a case involving the client’s possession of contraband, after all, carries its own risks; it encourages the client either to continue possessing the contraband, thus exacerbating his crime, or to destroy it, thus committing a second crime to compound the original possessory crime. There is simply no way for the lawyer to handle such a situation without jeopardy. No matter what he or she says or does, either the client or the lawyer must engage in arguably criminal conduct and thereby subject himself to legal jeopardy.
When the law becomes a trap for the unwary, it becomes an engine of oppression rather than a statement of the moral and ethical requirements of a society’s citizens. At the very least, this prosecutorial behavior will discourage lawyers from taking child pornography (or, for that matter, heroin) cases, and will deprive citizens, under investigation or indictment, of legal counsel from an attorney who is concerned with the client’s legitimate interests rather than with the lawyer’s own reputation or liberty.
Long before Sarbanes-Oxley was even a twinkle in legislators’ eyes, obstruction of justice statutes had been slippery territory for lawyers and especially for criminal defense attorneys, who are entrusted with all manner of confidences in their line of work. Criminal defense lawyer William J. Cintolo’s nightmare began long before he realized it. The FBI had installed an electronic listening device on the first floor apartment at 98 Prince Street, in Boston
’s North End. The neighborhood was home to a good part of the city’s Italian-American population, as well as to the Massachusetts branch of the Mafia. With their bug firmly planted in the Prince Street apartment, the feds managed to record conversations at the headquarters of Boston’s Angiulo crime family between January 19 and May 3, 1981.
On the first day of the feds’ monitoring, Gennaro Angiulo, the head of the family and the organization, discussed an overdue loan-shark debt owed by one Louis Venios, proprietor of the Mousetrap Lounge. Over the next few days, Gennaro (“Jerry”) Angiulo and his brothers Michele (“Mike”), Francesco (“Frank’), Nicolo (“Nick”), and Donato (“Danny”) discussed finding Venios to learn what efforts he was making to repay the debt. Someone suggested contacting Venios’s son-in-law, Walter LaFreniere, to see if he might be able to shed light on either the status of the debt or Venios’s whereabouts. It was a useful contact. On February 5, LaFreniere delivered some of the overdue cash. He clearly was interested in protecting his father-in-law.
The Angiulos, it turned out, were not the only ones interested in talking to Venios. While the Angiulo mob’s conversations about collecting Venios’s past-due debt were going forward, secretly recorded by the FBI, a federal grand jury a few blocks away was hearing evidence in what would eventually lead to a massive racketeering indictment against the Angiulos and their associates in crime. Venios had been subpoenaed to appear before the grand jury and did so on February 26. As is common on the part of both loan sharks and their customers, Venios invoked his Fifth Amendment privilege against self-incrimination and refused to testify. His son-in-law, LaFreniere, while represented by a lawyer, did the same two weeks later. Father-in-law and son-in-law were obviously sticking together, trying not to incur the wrath of the Angiulo organization.
The Angiulo brothers knew about the grand jury, of course, and were getting nervous about it. Which of their organization’s activities were under scrutiny, and who was being called to give evidence? The brothers were particularly concerned because grand jury proceedings are conducted in secret. Unless a witness is willing to report back what has happened inside the grand jury room, it’s virtually impossible to get reliable intelligence about what has transpired or even which witnesses have shown up. Lawyers for witnesses are not allowed to accompany their clients inside the grand jury room and must depend on their clients to brief them. Witnesses and their lawyers are allowed to disclose what happened, although only the witness can speak from firsthand knowledge. Meanwhile, inside the grand jury, questions are posed to witnesses by federal prosecutors. On occasion, one or more of the 23 members of the grand jury (who are sworn to secrecy) ask questions. By majority vote a grand jury may bring an indictment, normally drafted by the prosecutors, against the target(s) of the investigation.
The Angiulos obtained whatever grand jury information they could from Venios and LaFreniere. But they naturally could not be confident they were getting the truthful or whole story, since the witnesses had gone inside the chamber alone. Gennaro was heard saying on the FBI tape that while he had great confidence that Venios, with whom he had a long relationship, could be counted on to keep his mouth shut, he was not so sure of the relative newcomer and suspected weakling LaFreniere. It was at that point that Gennaro came up with the idea of volunteering the Angiulo brothers’ own lawyer, Cintolo, to advise LaFreniere. Having LaFreniere represented by an experienced and friendly lawyer like Cintolo would not only help prop up the witness but would also serve as a link between the Angiulos and LaFreniere.
Upon the suggestion of Donato Angiulo, LaFreniere contacted Cintolo seeking legal advice and representation for the grand jury proceedings. Of immediate concern was that the prosecutors would follow the typical pattern in such cases: when met by a witness’s invocation of the Fifth Amendment privilege against self-incrimination, the prosecutors normally obtain a directive from a federal judge ordering the witness to testify and giving him legal assurances that nothing that he says would be used against him. Such an “immunity order” eliminates the witness’s right to continue to invoke his privilege against self-incrimination. At that point the witness either agrees to testify or is jailed by the judge for the duration of the life of the grand jury or until he relents. Grand juries typically sit for 18 months at a stretch, and in a long and difficult investigation it is not unusual to renew a grand jury term for a second 18-month period. In this way, a recalcitrant immunized grand jury witness who refuses an order to testify could spend as long as 36 months in prison.15 And if the witness testifies but he lies, he then is subject to even longer penalties for perjury.
There is not much that a defense lawyer normally can do, except to advise the immunized client-witness that, if he does not want to testify, he is better off serving a contempt sentence than committing perjury. Indeed, it is widely viewed, within the legal profession, as a lawyer’s ethical obligation to advise a client against perjuring himself and then to leave up to the client the decision whether to testify or to risk a contempt citation.
When LaFreniere contacted Cintolo after his first appearance before the grand jury, the lawyer instructed his new client to write a complete description of what had occurred during the proceedings. He told LaFreniere to recount all questions asked (and which questions LaFreniere had refused to answer on Fifth Amendment privilege grounds while represented by his prior legal counsel). After that initial appearance, the prosecutors told LaFreniere that they were not satisfied with leaving the matter there. They advised the witness to have his lawyer contact them because the government was intent on forcing him to testify. A dreaded immunity order clearly was coming.
But there was a problem. Cintolo, in addition to representing the Angiulo brothers, represented Gennaro’s son Jason Angiulo as well, and Jason had also been subpoenaed by the grand jury. Jason, unlike LaFreniere, was a “target” (that is, someone ultimately to be charged and not just a witness). Targets, unlike prospective witnesses, are almost never immunized. Prosecutors want their hides, not their testimony. (Often the coerced testimony follows as a result of a conviction and a very long prison sentence.) As Cintolo later testified at his own trial, he informed LaFreniere of his representation of Jason Angiulo and said that he could represent both of them only if LaFreniere maintained the same position he held at his first grand jury appearance and before he had contacted Cintolo—a refusal to testify. Were LaFreniere to decide to testify, Cintolo would be put into a conflict-of-interest position, he explained to LaFreniere, since he would be representing a member of the Angiulo family on the one hand, and a witness against the family member on the other. But crucially, Cintolo explained, as long as LaFreniere had made a firm decision to refuse to testify, Cintolo could undertake the representation of both. Their interests and intentions were in harmony rather than in conflict, since neither Jason Angiulo nor Walter LaFreniere was going to testify. Cintolo’s decision to represent LaFreniere turned out to be, as we shall see, very much in LaFreniere’s best interests. It might well have saved the client’s life.
Cintolo’s advice to LaFreniere was technically correct, although views within the legal system vary on the question of whether it is prudent for a lawyer to represent both a witness and a target, even if both clients are informed of the dual representation, and even if the witness initially decides, entirely on his own accord and while represented by other legal counsel, to refuse to testify against the target. In prosecutorial circles especially, it is widely assumed—and not without good reason—that by the witness’s retaining the same lawyer who represents the target, the witness loses the benefit of the lawyer’s unfettered and unconflicted legal advice as to whether the witness should continue to maintain his refusal to testify. However, as we shall see, special circumstances in this case arguably made it in LaFreniere’s best interests to be represented by a lawyer who had a relationship to, and credibility with, the Angiulo family.
The situation heated up when FBI monitoring agents, listening covertly to the Prince Street co
nversations, overheard Gennaro Angiulo instruct two of his lieutenants, Richard Gambale and Peter Limone, to kill LaFreniere. Gennaro was getting increasingly uncomfortable with the idea that LaFreniere might decide to testify and incriminate Jason Angiulo. The monitoring agents promptly contacted LaFreniere by telephone and sought an immediate meeting. At the meeting, the agents informed LaFreniere that Gennaro had put out a contract on his life and that he would likely be murdered within a day or two, prior to his next scheduled grand jury appearance. The agents, not wanting to disclose that their source was an electronic bug, attributed their information to an informant. They offered LaFreniere FBI protection, a frequent prelude to obtaining a witness’s cooperation. But LaFreniere, who had already received an invitation to meet with Gambale that evening, turned down the agents’ offer.
LaFreniere reported all of this to Gambale on the phone, disclosing not only the FBI contact but also his own concern that perhaps Gambale wanted to murder him. Wisely, LaFreniere turned down the invitation to meet with Gennaro’s henchman. Gambale dutifully reported back to Gennaro, who contacted Cintolo and suggested that the lawyer meet with his increasingly nervous client, LaFreniere. Gennaro disclosed to Cintolo that the FBI agents had told LaFreniere that there was a “hit” contract on him, although Gennaro did not actually confirm the existence of such a contract, much less his own role in ordering it. Nor, strikingly, did Gennaro deny to Cintolo that a contract on LaFreniere existed. Still, Cintolo could not be certain whether LaFreniere was really in mortal danger.
Cintolo, having undertaken to represent LaFreniere, tried to do what he could for a witness-client who had already indicated that he preferred to suffer the consequences (namely, a contempt sentence) of refusing to testify even if immunized. Very few options exist for a defense lawyer with a client who refuses to testify in the face of an immunity order, but Cintolo did what he could. He sought a continuance of the grand jury appearance to give him and his client more time to prepare. He fought against a government attempt to get him disqualified on conflict-of-interest grounds from representing both Jason Angiulo and LaFreniere. Even though both clients waived any such conflict, the judge agreed, predictably and properly, with the government that both a witness and a target of the grand jury should not have the same lawyer. Cintolo filed an appeal of that order, which he promptly lost. As a result, he was forced to drop his representation of Jason Angiulo. In the meantime, Cintolo was able to garner information about where the grand jury inquiry was heading, information he shared with the Angiulos.
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