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.”