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Case cena mmeeiumeess s. Se18 FiledG@a7ear PagPagéd $3 of 117 Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 6 of 29 DISCUSSION Events in March 2011 15. | The Brune & Richard lawyers had no duty to reveal to the court Trzaskoma’s discovery of a 2010 court order suspending a Bronx lawyer with the same name as juror Conrad. None of the lawyers had knowledge that the Bronx lawyer and juror Conrad were the same person. None even had “clear and convincing” evidence or “strongly suspected” — the objective and subjective tests Doe rejected — they were the same person. Trzaskoma and Brune (who was told of the discovery though not shown the suspension order that Trzaskoma discovered but did not print) resolved to await juror Conrad’s voir dire answers. Those answers, including juror Conrad’s Bronxville address, directly contradicted any identity between the juror and the lawyer. This was _in fact compelling. If the sworn answers were true, the juror was not the lawyer. A contrary conclusion would require the lawyers to believe that a suspended lawyer would repeatedly perjure herself in federal court in order to sit on a jury. Events in May 2011 16. Juror Conrad gave the Court a note asking if the jury was going to be instructed on vicarious liability and respondeat superior. The contents of the note led Trzaskoma, assisted by others at the firm, to take another look at the issue the next day. The 2010 suspension order and an earlier suspension order from 2007 were found. Both identified a Bronx lawyer. A paralegal discovered the Westlaw profile and forwarded it to Trzaskoma in an email that highlighted selected information. After seeing the selected information but before reviewing the entire profile, Trzaskoma wrote “Jesus, I do think it’s her,” but then, after reviewing the entire profile, changed her mind in light of the contradiction between the juror’s voir dire answers and the limited information about lawyer Conrad (different levels of education, different addresses, etc.). In addition, Trzaskoma did not believe that the given age of the Bronx lawyer agreed with the apparent age of juror Conrad. 17. Trzaskoma discussed the issue with Brune and Edelstein later in the day. All three concluded that juror Conrad was not the suspended lawyer. Co-counsel with whom the matter _ was thereafter informally discussed thought the question not worth pursuing. Because the Brune & Richard lawyers did not believe — let alone have actual knowledge — that the juror and the suspended lawyer were the same person, they did not present their information to the Court. At least five lawyers, based on what they had seen or been told, reached this conclusion. 18. At this time, as earlier, no Brune & Richard lawyer had actual knowledge that juror Conrad was lawyer Conrad. Actual knowledge is the mental state that creates the disclosure duty under New York Rules 3.3(b) and 3.5(d). There was no ethical duty to reveal a suspicion, even a strong suspicion. 19. Any notion that silence was intended to preserve undetected a basis for a new trial motion in the event of conviction is belied by the lawyers’ actions. There was no effort to seek a new DOJ-OGR-00009452