This is the kind of case that wakes up lawyers in a cold sweat at night.
The Second Circuit recently granted a new trial to a defendant after the trial court found that he had waived his right to a new trial. The waiver came when his lawyers discovered the possibility that a juror had lied during jury selection but did not raise it until after trial when they had actual knowledge of the lies.
A lot of potential jurors may avoid the truth during voir dire. They don’t to be put on the jury, so they will come up with all sorts of reasons to get out of it. In this case, though, a juror lied to stay on the jury.
The lawyers did everything right, in my view. The trial court concluded that it wasn’t enough. The punishment was visited not on the lawyers but on their client. Luckily, the Second Circuit saved the day.
The Voir Dire Lies
A few years ago, David Parse, a former Deutsche Bank broker, and four other defendants were accused of criminal tax fraud for orchestrating a tax shelter scheme that allegedly cost the government $1.63 billion in lost revenue. They went to trial in 2011.
This was a high-profile trial. The other defendants included another Deutsche Bank broker, two partners at defunct law firm Jenkens & Gilchrist and the former CEO of BDO Seidman.
The juror in question was named Catherine Conrad. Her name is important because it’s not a very unique name. You can imagine that if you searched that name online, you would get a lot of hits on a lot of different people.
She apparently lied (under oath) during jury selection in order to make herself a more “marketable” juror. Here is a snapshot of the transcript from her testimony during voir dire:
THE COURT: All right. What is the highest level of education you’ve attained?
CONRAD: I have a BA in English literature [and] classics, and I studied archaeology abroad. . . .
THE COURT: All right. Is there anything that you think it would be important for us to know about you in making a decision as to whether you should serve as a juror in this case?
CONRAD: If the trial lasts more than three months, I’m still available.
THE COURT: All right. Thank you very much. Is there any reason that you feel you could not be fair and impartial in this case, Ms. Conrad?
CONRAD: Not at all.
The problem with this testimony was that Ms. Conrad was an attorney with a suspended license who had just applied for reinstatement the day before.
That wasn’t the only misrepresentation. Ms. Conrad lied about a personal injury trial in which she was the plaintiff and a witness, her current address, and her extensive criminal record, among other things.
The Attorneys’ Supposed Errors
In courts where the lawyers get potential jurors’ names ahead of time, we try to do some preliminary research on the jurors to find any public information that may help us evaluate whether the juror would be good or bad for our side. This can range from having a paralegal search the internet for each person’s name to hiring a full-blown investigative firm. It depends on time and budget. (In some courts, you get the list of jurors when you walk into the courtroom that morning, so forget about researching them.)
During an initial round of juror research, the attorneys for Mr. Parse found that an individual by the name of “Catherine Conrad” had a suspended law license in the State of New York. But, based on the juror’s voir dire responses, the lawyers concluded that it was not have been the same person. Ms. Conrad. Call this Red Flag #1.
During the trial, however, Ms. Conrad sent out a note asking about respondeat superior, a legal concept which had nothing to do with the case. At that point, the firm did some more research on Westlaw that suggested that she could be the same person as the suspended New York lawyer. Call this Red Flag #2.
After exchanging various emails and meeting with one another, the lawyers for Mr. Parse concluded that it was “inconceivable” that a lawyer would perjure herself to that degree and that Ms. Conrad must have asked the question because she learned the term during her personal injury case.
Mr. Parse and three of the other defendants were convicted of some charges. (The other Deutsche Bank broker was acquitted at trial.) Mr. Parse was sentenced to three and a half years in prison.
After the trial, Ms. Conrad sent an unusual note to the government praising the prosecutors for their work. After learning of the letter, Mr. Parse conducted further investigation and realized that Ms. Conrad the juror was Ms. Conrad the suspended New York attorney.
It is important to note that only the lawyers for Mr. Parse had this information about Ms. Conrad. They did not share it with the other defendants’ lawyers.
Trying to Fix the Problem – Unsuccessfully
All four defendants immediately filed a Joint Rule 33 Motion for a New Trial. Under Rule 33, the court may vacate judgment and order a new trial “if the interest of justice so requires.” According to the Supreme Court (McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984)) to get a new trial when a juror lies during voir dire:
[A] party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.
Judge William H. Pauley held an evidentiary hearing on the Rule 33 motion and questioned Ms. Conrad. (Notably, she initially refused to appear and a warrant had to be issued for her arrest, plus the government provided her use immunity to preclude her from taking the Fifth.)
She told the court that she wanted to be on the jury to “get back in the swing of things,” and that if the defense counsel had known her true identity, then they would be pleased to include her on the jury because they “want crooks on the jury.” According to her, she wanted to be more “marketable” as a juror.
The court concluded that Ms. Conrad was a “pathological liar and utterly untrustworthy” and that she was actually biased against the defendants.
The good news was that the district court found that the three other defendants were entitled to a new trial on the basis that they had no knowledge of Ms. Conrad’s lies and omissions during voir dire.
Now for the bad news. As the court said, it
bears noting at the outset that a defendant can waive certain rights through the actions of his attorneys, even if the defendant himself was unaware of the circumstances and actions giving rise to the waiver.
The district court found that Mr. Parse alone was not entitled to a new trial because his attorneys had waived that right. The court concluded that based on the Westlaw report that they read and the conversations among them, it was clear that the attorneys knew that the juror had told a material lie and chose not to disclose their knowledge to the court.
The court found that Mr. Parse’s attorneys had shown an unreasonable lack of diligence after discovering the red flags and that they should have sought guidance from the court after they learned about the potential issues with Ms. Conrad.
In short, the lawyers screwed up and the client would have to pay the price.
The Second Circuit set things right.
The court of appeals disagreed with the lower court’s finding that Mr. Parse’s lawyers had made an error large enough to prevent him from getting a new trial. They noted that it was reasonable for Mr. Parse’s attorneys not to jump to the conclusion that Ms. Conrad had told such enormous lies after finding the attorney with the same name online.
Although the lower court believed that the attorneys either knew or should have known there was an issue after obtaining the Westlaw report, the Second Circuit credited their contention that they found it “inconceivable” that an attorney would perjure herself so much during voir dire just to sit on a jury. The Second Circuit made two basic holdings:
We conclude that to the extent the district court found that Parse’s attorneys knew Conrad had lied, that finding is not supported by the record; and to the extent that the court ruled that Parse’s right was waived because his attorneys failed to exercise due diligence to learn the facts, that ruling was based on an error of law.
Mr. Parse’s attorneys, along with amici, urged the Second Circuit to adopt a rule that attorneys should not be obligated to bring their concerns about jurors to the court absent actual knowledge. Unsurprisingly, the court sidestepped and declined to rule on that issue, concluding that the panel doubted “that such a sweeping and absolute rule is appropriate” and that it did not need to adopt such a rule to reverse the conviction.
Where Are Things Now?
According to the docket, the case has been reassigned from Judge Pauley to a different SDNY judge and a status conference is scheduled for September 10th. It is not clear whether the prosecutors intend to retry Mr. Parse.
They did retry the other defendants—one pleaded guilty, one was acquitted and one was convicted.
When Is a Red Flag Worth Waving?
This case is a frightening one for white collar defense attorneys (and any other trial lawyer, for that matter). It suggests that we may need to bring to the court’s attention anything we find in our juror research that conflicts with what a potential juror says. If we don’t, we risk the trial court concluding later that we’ve waived any right to a new trial based on an tainted jury.
I’m not sure judges (or jurors) love the concept that the lawyers are researching jurors in the first place. Bringing to the court’s attention the results of extensive research is awkward, to say the least, particularly where the information is unreliable and the conclusions drawn from it are uncertain.
I’m sure that Mr. Parse’s lawyers did not sleep well until the Second Circuit decision came down. As criminal defense lawyers, we do everything we can to keep our clients from being charged. If they are charged, we do everything we can to win at trial. It’s stunning that one small error in judgment at trial could have tragic consequences for our clients. This story has a happy ending (so far) but will yours?