2nd Circuit punts on rule for defense counsel to report juror suspicions

June 8, 2015

The 2nd U.S Circuit Court of Appeals undid an injustice Monday when it ordered a new trial for David Parse, a one-time Deutsche Bank broker who was convicted in 2011 for his alleged participation in a tax shelter scheme supposedly masterminded by the now-defunct law firm Jenkens & Gilchrist. In an opinion by Judge Amalya Kearse, the appeals court said Parse’s conviction was tainted by a biased juror who admitted after trial that she had told a series of breathtaking lies during voir dire. Even though Parse’s former lawyers at Brune & Richard had turned up Internet evidence before and during trial that raised suspicions about the juror, the 2nd Circuit said, Parse had not waived his right to an impartial jury.

But the appeals panel refused to define exactly when lawyers are obliged to inform judges that prospective jurors might be lying in order to preserve their clients’ constitutional rights. Parse’s counsel, Alexandra Shapiro of Shapiro Arato, and the New York Council of Defense Lawyers, in an amicus brief, had asked the 2nd Circuit to establish a bright-line rule that defense counsel need not report concerns unless they are sure of jurors have done something wrong. Judge Kearse and the other members of the 2nd Circuit panel, Judges Richard Wesley and Chester Straub, said they doubted “that such a sweeping and absolute rule is appropriate,” and that, in any event, they didn’t need to devise a broad rule to resolve Parse’s appeal.

That’s a missed opportunity to clarify the implications of juror research that has become commonplace in white-collar cases. The Parse opinion seems to imply that judges should not construe defense counsel’s failure to alert the court of their suspicions as a waiver of their client’s Sixth Amendment right to an unbiased jury. I doubt, however, that any lawyers want their clients to go through Parse’s ordeal of four years of post-trial and appellate proceedings before securing a new trial. Defense lawyers in the 2nd Circuit will probably have to err on the side of disclosure if their investigation of prospective jurors turns up anything untoward: Tattling to judges may invade jurors’ privacy and annoy the court, but that’s preferable to risking a defendant’s constitutional rights.

The history of Parse’s case is uniquely bizarre. As I’ve previously recounted, Brune & Richard’s pretrial Google search on members of the jury panel turned up the information that one of them, Catherine Conrad, shared a name with a New York lawyer who had been suspended for alcohol abuse. When prospective jurors were questioned, however, Conrad said she was a stay-at-home wife whose education ended with a college degree in literature. Parse’s lawyers decided the juror Catherine Conrad couldn’t be the suspended lawyer, reasoning that no lawyer would tell such blatant lies under oath.

Their suspicions were revived during the jury’s deliberations, when the juror Conrad sent a note to U.S. District Judge William Pauley that included some legal jargon. A Brune & Richard partner ordered a Westlaw report on the juror, which conflicted with Conrad’s answers in voir dire. The partner said in an email that she thought the juror might, in fact, be the suspended lawyer after all. But the Westlaw report, which was seen by only one partner, was inconclusive. Once again, the Parse defense team ended up deciding not to tell Pauley about the two Catherine Conrads.

After the jury convicted Parse and three co-defendants, the juror Conrad sent a congratulatory note to assistant U.S. Attorney Stanley Okula, who later filed the letter on the docket. The phone number on the juror’s note was the same as a phone number Brune & Richard had turned up for the suspended lawyer, so the firm hired an investigator to find out more about Catherine Conrad. To make a long story short, the juror and the suspended lawyer turned out to be one and the same person – a suspended lawyer with an arrest record and a husband who served time in prison. Conrad, according to Judge Pauley, was “a pathological liar” who wanted, from the beginning, to see the defendants convicted. Judge Straub of the 2nd Circuit, in a concurrence to Monday’s opinion, said he had never encountered “such egregious juror misconduct.”

Judge Pauley ordered new trial for Parse’s co-defendants. But he ruled that Parse had waived his right to an impartial jury. Pauley concluded that Brune & Richard knew the juror Catherine Conrad was the suspended lawyer and failed to disclose its knowledge in order to preserve the option of challenging the verdict if Parse were convicted. And even if Brune & Richard hadn’t been certain of Conrad’s deception, the judge said, it had neglected a duty to investigate and report its suspicions when they arose. According to the trial judge, Parse waived his right to an impartial jury through his lawyers’ conduct.

The NYCDL and Parse argued that Judge Pauley’s decision seemed to create unprecedented new due diligence and disclosure obligations for lawyers who investigate prospective jurors. The ruling might chill legitimate juror research, they said, or conversely could trigger unwarranted follow-up investigation and even judicial involvement. “The upshot will be further invasion of the privacy of jurors, a drain on the scarce resources of the court and of trial counsel, and delay in the underlying proceedings themselves,” the lawyers’ organization said in its brief. It asked the 2nd Circuit to require disclosure only when defense counsel have actual knowledge of juror misconduct. (Parse’s appellate brief also argued, of course, that Parse himself knew nothing about Brune & Richard’s investigation of Conrad and should not suffer the constitutional consequences of his lawyers’ actions.)

The 2nd Circuit majority opinion found Pauley was wrong on the facts when he held Brune & Richard knew Conrad lied in voir dire, focusing on the firm’s faith in prospective jurors’ sworn statements in voir dire. (In his concurrence, Judge Straub said he wasn’t convinced Judge Pauley’s findings on that point were clearly erroneous.) All of the appellate judges said Brune & Richard’s limited investigation of Conrad didn’t waive Parse’s right to an impartial jury. Straub, in fact, said defendants cannot waive such a right when a juror’s bias has been established. He understood Judge Pauley’s concern about defense lawyers “sandbagging” verdicts with previously undisclosed doubts about jurors, Straub write, but it would “make a farce of our system of justice” to uphold Parse’s conviction.

The decision did not, however, address the policy questions Judge Pauley’s ruling provoked. “The opinion showed the court is certainly not prepared to adopt a bright-line standard,” said Lawrence Zweifach of Gibson Dunn & Crutcher, who was co-counsel on the NYCDL’s amicus brief. According to Zweifach, it’s no cure-all for lawyers simply to tell judges whatever they uncover in Internet searches on prospective jurors. Such disclosures might lead to government accusations that defendants are trying to manipulate the jury selection process or could lead to expensive satellite inquiries about particular prospective jurors. It’s especially difficult for defense lawyers to make ad hoc decisions about what to say about juror research, he said, in the fast-moving voir dire process.

By declining to adopt a broad rule to cover the standard practice of researching jurors, Zweifach said, the 2nd Circuit assured one thing: It hasn’t seen the last of juror investigation issues.

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