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.