The defendant accused and convicted of mail fraud and tax evasion did not waive his right to an impartial jury when his attorneys suspected a biased and dishonest juror but failed to raise contemporaneous objections, the Second Circuit ruled Monday.
David Parse, a former Deutsche Bank broker who was prosecuted because of his involvement in an allegedly illegal tax shelter scheme, saw his trial hijacked by a rogue juror.
That juror, Catherine Conrad, was a suspended New York lawyer and "a pathological liar and utterly untrustworthy" in the words of the district court, who rallied the jury to convict Parse and his codefendants. However, the district court ruled, Parse had waived his right to an impartial jury when his lawyers failed to act on early suspicions. The Second Circuit reversed, but declined to establish a clear rule governing just when a failure to act on suspicions would lead to such a waiver.
Straight from The Runaway Jury
In their initial juror research, Parse's lawyers found that Conrad shared a name with a suspended New York attorney, though at voir dire Conrad claimed to be a stay at home mother. Parse's lawyers became suspicious again during deliberations, when Conrad used legal terms of art in a note to the judge. They ran a Westlaw report on her, which conflicted with the back-story given in voir dire but did not conclusively demonstrate that she was a suspended attorney. Of course, she was, which was conclusively shown only after she contacted the prosecutor after the trial.
As the court described it, Conrad:
aligned herself with the government, lied pervasively in voir dire for the purpose of avoiding dismissal for cause, believed prior to the presentation of any evidence that the defendants were "crooks," and expressly mentioned Parse as a target of her efforts to persuade the other jurors to convict.
But while Parse's co-defendants were granted a new trial, the district court denied Parse one, saying that his lawyers failure to act on their suspicions had waived his right to an impartial jury. That ruling, Parse argued on appeal, created an unprecedented diligence requirement for juror research that would either lead to increased invasions of juror privacy by counsel or would scare attorneys away from conducting research at all.
A Limited Holding
The Second Circuit, declining to draw a bright line rule, granted Parse a new trial. Parse's lawyers and the New York Council of Defense Lawyers had argued, as Reuter's Alison Frankel notes, for an explicit rule that lawyers did not need to report concerns about jurors unless they were certain about a juror's wrongdoing. The court focused instead on the limited research Parse's lawyers had done, which they found insufficient to waive his right to an impartial trial.
That's good news for Parse, but unsatisfying for those seeking a clearer rule. Letting Parse's conviction stand, Judge Straub's concurrence writes, would "make a farce of our system of justice." However, as of now, all we're left with is the limited holding that failing to make contemporaneous objections after an inconclusive Google search is not enough of a failing to result in the loss of a right to an impartial jury.