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Kent case shows potential misuse of obstruction charge by prosecution

Michael Lowe [Criminal defense attorney, Law Offices of Michael Lowe]: "I've been following the Judge Samuel Kent story since last fall, blogging on it periodically. Perhaps my perspective is a bit different than some other folks, given that I'm a Texas board-certified criminal defense attorney, but I find the end result of the Kent case troubling.

First of all, I'm not surprised that the impeachment of Judge Kent is being dropped. Why spend the money? Second, while his initial post-dated letter of resignation was insulting to many, the strategy was shrewd. It was a clever and aggressive defensive tactic by Kent.

I see a bigger problem here. Judge Kent was initially indicted for three crimes: (1) two counts of abusive sexual contact; and (2) one count of attempted aggravated sexual abuse. His first trial setting got bumped due to Hurricane Ike. On the eve of the new setting, three new charges were added to his indictment. One of them was an obstruction of justice charge.

Remembering back to Enron and Martha Stewart, the obstruction of justice charge is proving to be a powerful and successful tool in the prosecution's belt. Under an obstruction charge, you don't have to be guilty of the crime being investigated to be guilty of obstruction. And you still face a significant punishment: on obstruction alone, Judge Kent faced 20 years imprisonment.

Charging obstruction is a scary thing - you've got the constitutional right not to incriminate yourself, but absent taking the 5th how much leeway does a defendant have these days in dealing with the legal authorities? Creating criminal liability where there wasn't any beforehand is a danger to justice, and something we all need to be watching, as many scholars are warning against prosecutors' "creative interpretation" of the obstruction statutes.

Bottom line, from my perspective: I think that the obstruction charge may have been the deciding factor in Kent's case, and all this hoopla about his notorious resignation letter — which I believe led an infuriated Congress to start impeachment proceedings — distracts us all from a very real problem: the increased use of obstruction of justice charges by prosecutors in this country."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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