Tuesday, August 7, 2012

Daugerdas Defendant Whose Conviction Was Not Dismissed Claims Ineffective Assistance of Counsel (8/7/12)

The Wall Street Journal Law Blog today reports that David K. Parse, the sole defendant in the Daugerdas case who was not dismissed for juror misconduct, has filed a 2255 proceeding alleging that his attorneys rendered ineffecitve assistance of counsel in the actions or inactions that cause Judge Pauley to not dismiss his conviction.  See Chad Bray, Tax-Shelter Fraud Defendant Seeks New Trial Over Ineffective Counsel (WSJ Law Blog 8/7/12), here.  For my prior blog on the dismissals and refusal to dismiss Parse, see Daugerdas and Others, But Not All, Get New Trial (6/4/12; revised 6/22/12), here.

In response to my initial blog, one commenter, Joe diRuzzo, presciently said:  "Jack, I see a 2255 petition in the near future for Parse."  2255 is the shorthand for 28 USC Section 2255, here.

Normally, a 2255 proceeding is the procedure to argue:  (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law, and (4) that the sentence is otherwise subject to collateral attack.   Ineffective assistance of counsel the grounds most frequently asserted.  A Section 2255 occurs after normal appeals have occurred.  According to the WSJ Law Blog, Parse has filed some type of proceeding but it is not called a 2255 proceeding in the article, but as described it seems to cover ground often covered in 2255 proceedings.  And some courts say that the ineffective assistance of counsel issue may be raised in a motion for new trial.  Presumably that is the procedural posture for this motion.

Here is what the WSJ Law Blog says:
In a court filing late Tuesday, Paul Shechtman, Mr. Parse’s new lawyer, said the failure of his prior counsel to alert the court “constituted ineffective assistance” and he should be granted a new trial. 
“There should be little doubt that trial counsel’s performance was deficient,” Mr. Shechtman said. “As the court found, a reasonably competent lawyer on learning that Juror No. 1 might be a suspended lawyer with a history of alcoholism would have taken some action to resolve the issue. She would have conducted additional research, consulted with the government, or, most obviously, alerted the court so that it could inquire further.”
JAT comment:  From my perspective, I think Judge Pauley erred originally in punishing Parse because of his attorneys' alleged conduct / deficiencies that Parse did not knowing approve. I think Judge Pauley had a window to give the relief -- a new trial, which is going to occur anyway for the other defendants.  I think on the findings Judge Pauley made he may be almost required to conclude that Parse had ineffective assistance of counsel.  But then Judge Pauley is the judge -- "And a  good Judge, too" (Gilbert & Sullivan, Trial by Jury, see YouTube here), as I have said often in this blog.  See blogs, almost all positive, mentioning Judge Pauley here.

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