Persuasion Matters

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Ethics, Secrets and Lies. Oh My!

Did you hear about the latest decision in the United States. v. Daugerdas matter?

Daugerdas is not a new story.  We wrote about it last summer in our Google Mania series.  It was the largest tax fraud prosecution in U.S. history and involved allegations against attorneys.  Very prominent ones.

Last summer– after 22 million produced documents, and a three-month trial with 1300 exhibits and 41 witnesses– jurors convicted Daugerdas and three other defendants of tax fraud.

After the trial ended, the defendants learned that one of the jurors had withheld critical information during jury selection, and had that information been known to defendants, she would have been released from the panel.  They filed a motion for a new trial citing.

Last week, a New York federal judge granted a new trial (click here for Memorandum & Order) citing gross juror misconduct.  But only three of the four defendants get a new trial.  Why not the fourth, you ask?  Keep reading.

According to The Washington Post:

…one juror made a “calculated, criminal decision to get on the jury” and made “breathtaking” lies about her background to do so.  [U.S. District Judge William H. Pauley III] said the juror was a suspended attorney who hid her legal background, personal injury lawsuit filings, criminal records for herself and her husband and other facts, revealing a pattern of “sweeping dishonesty.”

It’s no surprise that Judge Pauley would grant a new trial based on the juror’s “deliberate and intentional lies.”

What may surprise you is that Judge Pauley refused to grant a new trial for David Parse, one of the attorney defendants convicted of fraud.  Why?  Because his attorneys learned of the juror’s misconduct before the trial had ended.  And chose to remain silent.

Judge Pauley had some strong words for Mr. Parse’s defense counsel:

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 position- cannot be squared with the duty of candor owed to the tribunal. … And Parse’s attorneys knew–or with a modicum of diligence would have known–of [the juror’s] misconduct before the jury rendered its verdict. But they gambled on the jury they had.

The Daugerdas ruling falls on the heels of Judge Cleland’s recent ruling in the Sandusky matter where he considered the Prosecution’s internet research on the jury panel to be privileged work product.  A couple weeks ago, we discussed the Sandusky trial and counsel’s duty to share any relevant information discovered about jurors through online research (or other avenues). [Click here for post]  There have been no allegations of juror or attorney misconduct in the Sandusky trial, but the Daugerdas ruling brings the issue of ethical duties front and center.

Whether you Google jurors or not, the lesson to be learned from Daugerdas is clear:   If you learn something about a juror that could be perceived as threatening the integrity of the judicial process, the right to a fair and impartial jury or the sanctity of the juror’s oath, silence is not an option.

Counsel has an ethical obligation to voice potential juror misconduct loud and clear.  Immediately.

Would the outcome have been different had Parse’s counsel raised this issue with Judge Pauley during trial?   We’ll never know.

Did the Sandusky prosecutors share any critical information with the court before deliberations began?  Let’s certainly hope so.

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