Jurors Behaving Badly

[author: Richard F. Albert]

A view of the jury box of a courtroom closed d...

 A closely watched white-collar criminal case poses an interesting question in a challenging context: just how egregious do a juror’s lies during jury selection have to be in order to warrant a new trial? United States v. Daugerdas is the third and final of a series of criminal prosecutions brought by  Manhattan federal prosecutors against partners at major accounting firms, lawyers and other professionals who participated in the promotion and operation of aggressive tax shelters marketed to wealthy individuals in the late 1990’s and early 2000’s.  Following an eleven week trial, in May 2011 the jury returned a verdict finding four of the defendants guilty of some or all of the charges against them and acquitting the remaining defendant of all charges. After the verdict, one of the jurors, Catherine Conrad, sent a letter congratulating the prosecutors on their trial performance. The government disclosed the letter to defense counsel, who proceeded to scour public records for further information about her. Their investigation revealed that Ms. Conrad lied repeatedly during jury selection, concealing numerous significant aspects of her identity.

Conrad’s misrepresentations under oath – which are not disputed by the parties – were wide-ranging. She informed the Court that the highest level of education she had attained was a bachelor’s degree when, in fact, she had earned a law degree. Moreover, despite numerous questions that required her to reveal such information, Conrad failed to disclose that (1) her law license had been suspended as a result of her “admitted problem with alcohol dependency”; (2) she had been arrested numerous times for shoplifting and DUI and was serving a sentence of probation; (3) there was an outstanding warrant for her arrest in Arizona on a disorderly conduct charge; (4) her husband had numerous felony convictions and had been incarcerated numerous times; and (5) she had been an unsuccessful plaintiff in a personal injury lawsuit. Conrad also lied about where she lived and mischaracterized herself as a “stay-at-home-wife” when just days before she had applied for reinstatement to the bar (by means of an application containing numerous falsehoods). Further, in post-trial proceedings on the defendants’ motions for a new trial, among other things Conrad refused to comply with a lawful subpoena, resulting in her arrest; exhibited insulting and contumacious conduct toward the Court; and at times responded to defense counsel’s questions with bizarre non-sequiturs and insults.  Conrad admitted that she intentionally lied during jury selection in order to make herself more “marketable” as a potential juror.

Despite the egregious facts, the defendants’ challenge to the verdict is a foray into notably hostile legal territory. Courts are understandably loath to countenance post-verdict attacks based on juror misconduct because of concerns about finality and juror privacy. Accordingly, the key Supreme Court decision on the issue holds that to warrant a new trial a defendant must show that the juror failed to honestly answer a material question during jury selection and that a correct answer would have provided a valid basis for challenging the juror for cause. Subsequent cases finding that this standard has been met are few and far between. Courts have found the evidence to fall short, for example, even when jurors have deliberately concealed their own and their family members’ involvement in court proceedings or investigations; concealed a relationship to a prosecutor in the office prosecuting the case; and concealed having been approached by a third-party seeking to ensure that the defendant had a sympathetic ear on the jury. 

In seeking to uphold the verdict, the government argues that, notwithstanding Conrad’s lies, the law requires the defendants to demonstrate that she was biased against them. The government relies heavily on the jury’s lengthy and apparently careful deliberations, and most importantly, on its split verdict, to assert that the defense cannot make such showing here. (As to one defendant, the government also argues waiver, claiming that during trial counsel was on notice of facts suggesting Conrad had lied during jury selection).

The defendants rely on case law holding that bias may be inferred from a potential juror’s deliberate falsehoods in order to be selected for a case. Perhaps even more persuasively, however, they argue that Conrad’s pattern of lies and deception during jury selection was so pervasive that it resulted in a total stranger being seated on the jury – a person utterly different in almost all material respects from the person the parties thought they were selecting.

 Briefing on the defendants’ motion for a new trial was completed in late April, and the Court’s resolution of these difficult issues will be closely watched. The defendants’ greatest challenge may well be the understandable reluctance to overturn the result of a hard-fought, complex and very expensive eleven week trial, particularly where the split verdict shows the jurors’ diligence. But if the unusual facts of this case do not warrant relief, it would raise real questions about when a juror’s lies during jury selection would ever warrant it. It would also raise real questions about how future courts and litigants can hope to maintain the integrity of the jury selection process.