Opinion

Alison Frankel

In tax fraud case, sins of defense lawyers are visited on client

By Alison Frankel
January 7, 2013

Should a law firm’s client suffer the consequences of a misstep by his lawyers?

That seems to be the fate of David Parse, a former Deutsche Bank accountant who was convicted of mail fraud and obstructing an investigation in 2011, as part of what’s been called the government’s biggest-ever tax fraud prosecution. Last week, U.S. District Judge¬†William Pauley¬†of Manhattan once again¬†refused to grant Parse a new trial, even though the judge previously¬†vacated the convictions¬†of three of Parse’s co-defendants (including two former Jenkens & Gilchrist partners), after evidence surfaced that a juror lied during jury selection. Pauley’s latest ruling, which marks the second time the judge has refused to order a new trial for Parse, concludes that Parse’s former lawyers at¬†Brune & Richard¬†were not ineffective counsel, even though they made what turned out to be a disastrous decision not to inform the court of suspicions about the lying juror.

I’ve previously written about Brune & Richards’¬†bizarre ethics dilemma, but to recap quickly: During jury selection, the firm ran across evidence that suggested a juror in the Parse case had the same name as a New York lawyer suspended from practice for alcohol abuse. Because of inconsistencies in the juror’s responses in voir dire, Brune & Richard concluded that the names were a coincidence and said nothing to the court before the trial — or during jury deliberations, when the juror used legal jargon in a note to the judge and the firm’s suspicions were reawakened.

After the trial ended and the juror sent a gushing note to prosecutors, Brune & Richard rechecked records and found out that the juror had the same telephone number as the suspended lawyer. The firm then moved for a new trial for Parse without telling the judge that it had previously researched a possible connection between the juror and the suspended lawyer. That was a fateful mistake. Pauley subsequently determined that the juror was indeed the suspended lawyer and she’d lied to get on the jury. That misconduct, he said, necessitated a new trial for Parse’s co-defendants.

But not for Parse, Pauley said in a¬†64-page ruling¬†last June. Even though three Brune & Richard lawyers testified at an evidentiary hearing in February 2012 that (among other things) the firm hadn’t even researched juror misconduct until a month after the verdict, when prosecutors disclosed the letter they had received from the problem juror, Pauley implied that Parse’s lawyers decided as a matter of strategy not to reveal suspicions about the juror until after the end of the trial. That way, the judge suggested, Brune & Richard could move to vacate the conviction on the grounds of juror misconduct. At the very least, Pauley said in the June ruling, Brune & Richard should have done more digging early on, in order to make an informed decision about the problem juror. The firm’s failure to do so, he said, constituted a waiver of Parse’s right to a new trial.

“Parse’s attorneys had a suspicion that Juror No. 1 was not the person she represented herself to be during voir dire,” the judge wrote. “That suspicion leavened into tangible evidence that (the juror) was a monstrous liar. And Parse’s attorneys knew — or with a modicum of diligence would have known — of (her) misconduct before the jury rendered its verdict. But they gambled on the jury they had.” Pauley said it was “anomalous, but entirely just,” that Parse’s co-defendants were granted new trials but he was not.

After the ruling in June, Parse brought in new counsel,¬†Paul Shechtman¬†of¬†Zuckerman Spaeder. In August, Shechtman filed a motion arguing that Brune & Richard’s failure to inform the judge about the problem juror amounted to ineffective assistance of counsel. Parse’s original lawyers, the¬†motion¬†said, didn’t have a strategy to preserve an argument for juror misconduct but made a misguided decision not to pursue their suspicions. The motion suggested that the mistakes of Parse’s lawyers should not cost Parse a new trial, especially because — unlike his co-defendants, who were convicted on every count in the indictment — Parse was acquitted on four of six counts against him.

Pauley’s ruling last Thursday rejected Parse’s arguments, in language that’s more directly critical of both Brune & Richard and its former client than even the June ruling. This is an angry opinion, by a judge who believes he was deliberately deceived.

Pauley said that defense lawyers at Brune & Richard had engaged in “conscious avoidance” when they decided not to investigate the suspicious juror, then “doubled down on their strategic decision when they filed a misleading motion for a new trial,” neglecting to disclose those previous suspicions. But Brune & Richard’s “strategic decision … to keep an impostor on the jury” did not constitute ineffective assistance, the judge wrote. The firm was anything but ineffective, the judge said. It left “no stone unturned” on Parse’s behalf — and its client must bear the consequences of a strategic misfire.

Pauley didn’t stop with a finding that Brune & Richard was not ineffective. He went on to consider the second prong of the test and concluded that Parse couldn’t show he was prejudiced by his lawyers’ conduct because he would have been convicted anyway. The evidence against him was “overwhelming,” Pauley wrote — a curious conclusion given the jury’s acquittal of Parse on four of six charges.

You can be sure that Pauley’s ruling isn’t the last word on Parse’s new trial. Shechtman told me, as he¬†previously told the Litigation Daily, that he’s disappointed Brune & Richard’s “mistake … has been visited upon Mr. Parse.” Parse is scheduled to be sentenced (by Pauley) in March, after which Shechtman will ask the 2nd Circuit Court of Appeals to review the case. The defense lawyer told me he’s hopeful the appellate court will permit Parse to remain free on bail for the appeal. Susan Brune of Brune & Richard declined to comment.

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