Monday, June 4, 2012

Daugerdas and Others, But Not All, Get New Trial (6/4/12; revised 6/22/12)

See Bob Van Voris, Juror Lies Trigger New Trial For Three In Tax-Fraud Case (Bloomberg 6/4/12), here.  The order is here.

The gravamen of the holding is that a juror, referred to as Conrad, misbehaved so egregiously that the Court could not have confidence in the verdict.

Here is the Conclusion:
Oaths are sacred and their origins ancient. They acted as a self-curse, and those who swore to one believed dire consequences flowed from its violation. That belief undergirded the oath's effectiveness and validated its purpose. See Helen Silving, The Oath: I (The Historical Evolution of the Judicial Oath in Various Legal Systems), 68 Yale L. J. 1329, 1335 (1959). Today, the need to punish perjurers-through contempt proceedings, criminal prosecutions, or both-is no less acute. While the decision to prosecute Conrad for perjury is not this Court's, the Government should have a strong incentive to punish such conduct and deter others. The prospect of preserving a tainted jury verdict should not temper the Government's resolve to call Conrad to account for her egregious conduct.

Jury selection is integral to the organization of a triaL As officers of the court, attorneys share responsibility with a judge to ensure the integrity of the proceedings. In this respect, counsel and the court are joint venturers. An attorney's duty to inform the court about suspected juror misconduct trumps all other professional obligations, including those owed a client. Any reluctance to disclose this information-even if it might jeopardize a client's a position be squared with the duty of candor owed to the tribunal.
At a minimum, Parse's attorneys had a suspicion that Juror No.1 was not the person she represented herself to be during voir dire. That suspicion leavened into tangible evidence that Conrad was a monstrous liar. And Parse's attorneys knew--or with a modicum of diligence would have known--of Conrad's misconduct before the jury rendered its verdict. But they gambled on the jury they had. Accordingly, Parse's attorneys' failure to bring Conrad's misconduct to the attention of the Court leads to the anomalous, but entirely just, result that Daugerdas, Guerin, and Field's motion for a new trial is granted, while Parse's is denied.  
For the foregoing reasons, Paul M. Daugerdas, Donna M. Guerin, and Denis M. Field's motion for a new trial is granted. David K. Parse's motion for a new trial is denied. The Clerk of the Court is directed to terminate the motion pending at ECF No. 459.
Judge Pauley is a truly exceptional judge.  I have written about his performance in the Daugerdas trial before.  For the collection on my blogs on Judge Pauley, see here.  I have to say, however, that I am troubled about the decision to deny Parse relief because of poor decisions of his attorneys.  Perhaps I have not studied his reasoning enough and will have to live with it a while.

I do recognize that decisions attorneys make or assist clients in making have consequences even if they result in convictions where other decisions might have avoided convictions.  What concerns me, however, is that the other attorneys made decisions by indecisions not to pursue the same trail that the Parse lawyers pursued to get to the point that they should have known of the problems with the juror.  Those clueless attorneys' clients get the second chance while Parse does not.  I am not sure that punishing Parse is the right message.  Maybe punishing the lawyers in some meaningful way would be more appropriate.  But I just need to live with the opinion a bit longer and struggle with it at least partially as much as I know Judge Pauley did.  My intuition is that he got it right.  I just have to get there.

Not necessarily that a new trial is an unmitigated blessing for those getting a new trial.  They almost certainly will be tried or forced to accept a plea where the sentencing factors will stack against them much as they would the first time.  Of course, one or more of them could be found not guilty upon retrial.  Well, we'll see.

All  Daugerdas related blogs are here.

Addendum on 6/22/12:

I have now had time to read the opinion carefully.  I remain unconvinced that, after finding that the juror misconduct prevented a fair trial, Judge Pauley should not have given Parse a new trial as well.

As best I read the facts,
(i) the defendant had no knowledge of his lawyers' intrigues that moved Judge Parse to deny the defendant relief; and  
(ii) although in hind sight the attorneys should have brought their suspicions to the judge's attention, they seem to have made a good faith decision not to pursue the possibility of juror misconduct and were not holding back a challenge in the event of conviction.
I think the lawyers just made some judgmental calls to not follow through, but those calls seem to have been made in good faith although they were wrong in hind sight.  It seems to me that the case is not the same as United States v. Bollinger, 837 F.3d 436 (11th Cir. 1988) where the information was known to the defendant's lawyer and the defendant's lawyer was not confused about the information and its potential implications to the case.  Here is the Court's recitation of the key facts in Bollinger (p. 438, record citations omitted):
De la Fuente's attorney first learned of juror Hunter's bias when he received a telephone call from Andrew Harris, Jr., on Saturday, June 10, 1984. Harris told the attorney that Hunter had discussed the case with Harris' aunt (Hunter's neighbor) during the trial and Hunter had stated his belief that de la Fuente was guilty. Saturday, June 10, fell in the midst of the jury's deliberations. The jury did not return its verdict until Wednesday, June 13. Yet, the attorney did not notify the court of possible juror taint until he filed de la Fuente's motion for new trial on June 28, 1984. 
The inference is that the lawyer knew or should have known.  I don't read the facts as to Parse's lawyers quite that crisply.

I think what may have also peaved the judge is that he believed the lawyers had not been as forthcoming as he thought they should have been after the juror misconduct was discovered.  But there is no indication that the defendant being hung with an unfair trial participated in any of that.

At least from my gut, I think it is unfair in a criminal case to hang a defendant with the defendant's lawyers' conduct when the trial has been found to be unfair with a tainted verdict.  The notion is that a defendant can waive certain rights through the actions of his attorneys.  I have no problem with that, it is just which rights.

Moreover, there is another constituency involved in the integrity of our system.  The citizens of this country and our system have an interest in the integrity of the system that has been found to have been compromised.  Does it make us feel better that we know Parse did not get a fair trial and must stand convicted anyway because his lawyers interpreted the uncertain facts differently than hind sight tells us they should have?  This is, after all, a right to a fair trail, not other rights such as the Fifth Amendment right not to testify against oneself that can be waived without impairing the integrity of the system.

Finally, as one commenter noted, it is quite possible that the attorneys' failures, if as bad as Judge Pauley presents, offer a strong case for ineffective assistance of counsel, a violation of the Sixth Amendment, which can be challenged in a 28 USC 2255 proceeding.  See Strickland v. Washington, 466 U.S. 668, 687 (1984); and McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970).  If that is the case, Parse will be perhaps only temporarily inconvenienced by the holding and then, it is likely, that the Government may be put to the choice of re-trying Parse separately from the other defendants who will be given a new trial or dropping the charges.  Perhaps Parse will be better off in a trial apart from the others or, if the Government were to decide not to try him separately, Parse may be the actual winner in all of this.

I would appreciate readers' comments.

Addendum 7/13/12:  Lawrence S. Goldman has a very good discussion of Judge Pauley's opinion:  Lying Juror Requires New Trial in Massive Tax Fraud Case (White Collar Crime Prof Blog 7/12/12), here.

1 comment:

  1. Jack, I see a 2255 petition in the near future for Parse. Having handle my fair share this is easy because the prejudice prong of Strickland is the Parse didn't get a new trial. If trial counsel didn't discuss this with their client and agree to engage in this dangerous gambit, then I think a judge would have to grant habeas relief.

    -Joseph A. DiRuzzzo, III


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