“I don’t know”

In my years of criminal law practice in Texas, I’ve never seen or heard of anyone using Texas Code of Criminal Procedure Article 12.45 during sentencing after an adjudication of guilt following revocation of deferred adjudication community supervision. However, I’ve been thinking about whether this could work, and I believe it might. Here’s my analysis.

First, let’s look at the sequence of events in an adjudication proceeding. Under Article 42A.108(b), when there’s an alleged violation of deferred adjudication community supervision, the defendant is entitled to “a hearing limited to a determination by the court of whether the court will proceed with an adjudication of guilt on the original charge.” The statute’s language is explicit – this hearing is limited to that single determination.

This is where timing becomes crucial. Article 12.45 allows a defendant to admit guilt to an unadjudicated offense and have it taken into account during sentencing of another offense. After considering the unadjudicated offense in sentencing, that offense is then barred from future prosecution. But could this be done during an adjudication proceeding?

The adjudication hearing under 42A.108(b) is strictly limited to determining whether to proceed with adjudication. You couldn’t use 12.45 during this phase because the hearing’s scope is explicitly restricted by statute. However, if the court decides to proceed with adjudication, what follows is a different “hearing” (essentially a normal sentencing proceeding) where the court assesses punishment within the range allowed by law.

At this subsequent sentencing phase, all the normal sentencing procedures and options should be available to the court – including consideration of unadjudicated offenses under Article 12.45. After all, once the court has decided to proceed with adjudication, it’s no different from any other sentencing hearing, right?

Has anyone tried this approach? Have you seen courts handle 12.45 offenses during post-adjudication sentencing?

While doing some legal research on an unrelated topic, I recently discovered the fascinating case of Philip Russell, a Connecticut attorney whose 2006 actions raised significant questions about attorneys’ responsibilities when discovering evidence of crimes. What drew me to this case was both its unusual circumstances and its surprisingly lenient resolution.

The case began when Russell, representing Christ Church in Greenwich, was called in after church employees discovered concerning material on their music director’s laptop. Rather than reporting the discovery to authorities, Russell destroyed the computer. Unknown to Russell at the time, the FBI had already begun investigating the music director.

Federal prosecutors charged Russell under two serious statutes: the Sarbanes-Oxley Act’s anti-shredding provision and an obstruction of justice statute. Each charge carried potential prison time of up to 20 years. However, in what seems like a remarkably favorable outcome, Russell was allowed to plead guilty to a lesser charge of misprision of a felony (failing to report knowledge of a felony to authorities).

In December 2007, Russell received what many would consider a light sentence:

• Six months of home confinement

• A $25,000 fine

• 240 hours of community service

While Russell agreed to a suspension of his law license, what’s particularly puzzling is that I can find no record of him being permanently disbarred for these actions. This seems surprisingly lenient given the deliberate destruction of evidence relevant to serious crimes.

Based on further research it appears that Philip Russell remains an active and respected attorney in Greenwich, Connecticut, where he continues to practice criminal defense law. According to his firm’s website, he holds an AV rating from Martindale Hubbell (the highest rating for legal ability and ethics) and has been Board Certified in Criminal Trial Advocacy by the National Board of Trial Advocacy since 1994. The 2006 laptop incident appears to be just a footnote in what has otherwise been a long and successful legal career spanning several decades. His practice handles a wide range of cases, and he remains active in the legal community, having served as President of the Greenwich Bar Association and as a board member of various professional organizations. Interestingly, this suggests that whatever disciplinary actions he faced following the 2007 case were indeed temporary, allowing him to return to full practice.

I haven’t found any similar cases of defense attorneys being prosecuted for destroying evidence since the Russell case. Perhaps this reflects that most attorneys already knew better than to destroy potential evidence, regardless of their intentions, or perhaps Russell’s prosecution, despite its relatively mild outcome, served as a sufficient warning to the legal community. Either way, it’s a fascinating story.