Document 1:09-cr-00581-WHP Document 522

Case 1:09-cr-100336-PAE Document 616 Filed 08/24/12 Page 35 of 117 A-5850 Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 8 of 29 23. The lawyers wrote: "The tone and content of the letter, which were in sharp contrast to the image Conrad had projected through the trial ('always head down, taking notes'), caused defendants concern and prompted them to investigate." Memorandum at 9. And they later wrote: "This is not a situation where Conrad disclosed sufficient information to warrant inquiry by counsel. Defendants had no basis to inquire whether Conrad was lying in response to each of the Court's questions." Memorandum at 32, n.13 (internal citation and parenthetical quote omitted). 24. In my opinion, these statements should be seen as true, not merely literally true in a hypertechnical or crabbed sense of the word, but true as reasonably read. They do not become untrue because a reader may draw a false inference that the lawyers did not intend. The juror's letter did cause concern and did prompt an investigation, as the first quotation in the memorandum states. That statement does not disclaim a prior search, whether that prior search is called an investigation or something else. I believe that focus on the word "investigate," which is not a term of art, would be misguided here. The sentence correctly describes what the letter caused the lawyers to do. 25. The second quote focuses on the voir dire in March and is also true as reasonably read. The lawyers had concluded that the order suspending a lawyer with the same name as juror Conrad was not a "basis" for an inquiry into the truthfulness of juror Conrad's answers. Just the opposite. Her voir dire answers, in their view, dispelled reason for inquiry. A suspended lawyer would not lie under oath at voir dire, they reasoned, given the consequences to the lawyer's ability ever to regain admission to practice. In my opinion, this conclusion was compelling. 26. It is also my opinion that the July 8, 2011, memorandum, taken as a whole, does not show a "knowing[]" violation of the provisions of Rule 3.3. It is true that even when a lawyer does not have a duty to speak, if she does speak, she may not knowingly misrepresent to a court or adversary. But an unintended inference is not a misrepresentation. The lack of disclaimer language in the memorandum's true statements - the fact that the lawyers, while focused on the new trial motion, did not anticipate what a reader might infer and what they did not mean to imply - is not an action that can support a finding of unethical behavior under the New York Rules. 27. The lawyers understandably now wish they had not included these passages as written. Greater focus might have led them to anticipate how others might read them differently than intended, and to omit them (they were unnecessary to the motion), rephrase them, or add the history of their earlier research. The July 15 Telephone Conference 28. In the July 15 telephone conference, the Court said that it wanted to "ascertain from each of the defendants ... whether any of them were aware of the disturbing things that have been revealed by defense on this motion concerning Juror Number One [Conrad]." The Court invited a response on the call or via letter. Trzaskoma's response was: Trzaskoma: We were not aware of the facts that have come to light, and I think if your Honor deems it appropriate, we can submit a letter. DOJ-OGR-00009454