September 2012: Trial Update

Second Circuit Allows Jurors to Take Their Work Home: Every trial lawyer envies the jury at the end of trial day as the judge admonishes the jurors not to talk about the case or do any outside work, just as the lawyers are setting out to prepare for the next day’s proceedings. But in a surprising twist, the Second Circuit Court of Appeals recently approved jury homework in United States v. Esso, the jury was allowed to take home copies of the indictment to study at their leisure.

In Esso, jurors in a criminal mortgage fraud trial requested to leave a bit early from the first day of deliberations. To speed the proceedings, they asked that each juror be allowed to take a copy of the indictment home with them so they could read it on their own. The judge allowed them to do so over the defendant’s objections. The judge warned the jury neither to discuss the indictment nor to do any independent research on the case. And the judge reiterated that the indictment is just an accusation and is not evidence.

The Second Circuit, in a case of first impression, held that allowing homework did not deprive the defendant of a fair trial. The court reasoned that having the indictment at home is similar to thinking about the case while at home. The court also relied on precedent from a few jurisdictions that have allowed jurors to take home jury instructions during deliberations. The court put special emphasis on the fact that trial judges are afforded broad discretion in trial management techniques, especially when the techniques are intended to save time. The court cautioned that the risk of a juror discussing the case with a loved one or doing independent research was greater if the indictment was sent home with them. But, since there was no evidence that the jury disregarded the “clear, uncomplicated” warnings to the contrary, the practice was allowed.

Defense Lawyer’s Decision During Voir Dire Waives Challenge to Lying Juror: A defendant in the Southern District of New York recently lost the chance for a new trial because his lawyer had suspicions that a juror was engaged in misconduct but did not pursue them until after the verdict.

United States v. Daugerdas was a three-month tax shelter fraud trial that resulted in the conviction of four of the five defendants. After the convictions, a juror sent a letter of congratulations to the prosecutor who then shared the letter with all defense counsel. Counsel for David Parse, who had had suspicions about the juror during voir dire and during the trial, then fully investigated the juror. Counsel discovered that the juror lied during voir dire so she could become a juror. She lied about where she lived, her and her husband’s criminal history, her educational background, and the civil cases that she was a party to. And she did not disclose that she was a disbarred attorney.

The district court held a hearing where the juror admitted to concocting an entire persona to make herself more “marketable” as a prospective juror. The juror also showed great bias against defense counsel, lamenting about their professional successes compared to her own and declaring that “‘most attorneys’ are ‘career criminals.’” The judge held that the juror’s misconduct entitled three of the convicted defendants to a new trial.

But the district court found that Parse was not entitled to a new trial because he waived his sixth amendment right to an impartial jury. During voir dire Parse’s defense counsel knew by doing a Google search that there was a disbarred attorney with the same name as the prospective juror. Defense counsel discounted the possibility that the two were the same person based on the juror’s answers during voir dire. Later in the trial, the juror sent a note to the judge asking about a legal standard, which prompted defense counsel to do more research into the juror’s background, including obtaining a Westlaw report. There were more similarities between the juror and the disbarred attorney, causing counsel to remark during an email exchange with a colleague: “Jesus, I do think that’s her.” The judge found this, among other things, as evidence of defense counsel’s actual knowledge of the juror’s true identity. The court alternatively found waiver because the defense counsel’s decision not to follow up on the evidence showed a “glaring lack of reasonable diligence.”

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