Document 1:20-cv-00330-PAE

Case 1:20-cv-00330-PAE Document 161 Filed 02/24/22 Page 15 of 117 A-5830 373 C2grdau4 Berke - cross 1 juror herself had said in response to a question about other 2 litigation that she had been involved in a personal injury 3 case. That's what I'm referring to. 4 Q. Right. My question to you is, would that information as 5 background, if Susan Brune came to you and told you that we not 6 only found a Catherine Conrad who was a suspended lawyer but we 7 also found a Catherine Conrad who was involved in a personal 8 injury lawsuit, is that something that you would have wanted to 9 know at the time? 10 A. I'm not sure I understand. We knew that Catherine Conrad 11 had said that she was involved in a personal injury suit. We 12 knew that from her answers in the voir dire. 13 Q. If you saw a piece of paper that connected Catherine Conrad 14 who was Juror No. 1 and Catherine Conrad who was a personal 15 injury lawyer and a suspended attorney who had the same address 16 as the person involved in the lawsuit, would that have been of 17 interest to you? 18 A. You know, I really am not comfortable speculating. What I 19 can tell you is I told you what I knew. I did not believe that 20 the person who had been a disbarred lawyer could have been or 21 was this Juror No. 1 based on what I knew. That's really all I 22 can tell you. 23 Q. So, your answer to my direct question is that you can't 24 answer the question? 25 A. Well, I would object if I was sitting over there, but I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009434 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 161 Filed 02/24/22 Page 65 of 130 A-5750 C2qrdau2 Brune - direct 293 1 prominence it has here. I missed the issue, and I really 2 regret that. It was, I think, a good brief, but it missed it. 3 Q. Do you think good briefs omit material facts, Ms. Brune? 4 A. I certainly do not think that about briefs. 5 Q. You knew when you wrote that brief about the suspension 6 opinion that Ms. Trzaskoma had found, correct? 7 A. That's correct. 8 Q. There is no mention of that in the brief, correct? 9 MR. SHECHTMAN: Judge, there is mention of the 10 suspension opinion in the brief. 11 THE COURT: Overruled. 12 A. You are right that the brief does not include a discussion 13 of our having accessed the suspension opinion during the trial. 14 Q. In fact, it's worse than that, Ms. Brune. You claim in 15 that brief that it was the letter of Ms. Conrad that prompted 16 you to investigate. That was simply not accurate, correct? 17 A. I think it was accurate in that we did not launch an 18 investigation of the sort that was described in the brief until 19 after the government disclosed the letter. But as I've said, I 20 missed that issue in terms of how the brief was written. 21 Q. Ms. Trzaskoma drafted in the first instance the set of 22 facts for that brief, correct? 23 A. Yes, that's right. 24 Q. She was well aware of the investigation that she asked be 25 done on May 12th, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009354 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 161 Filed 02/24/22 Page 84 of 117 A-5927 CAC3PARC 25 1 what was said was, look, don't be stupid, it can't be her, to 2 do any more would be a waste of the court's time. That's what 3 I think happened. That's what I think the record shows. 4 The other is, let's be smart. She'll be a great juror 5 because she is a suspended lawyer. Or, let's be smart. If we 6 leave her on, we get two bites at the apple. The latter two I 7 think are strategic, but be careful in the following sense. 8 The first one is a choice. It is a choice to do nothing. You 9 cannot have a case in which there is not in a sense a choice if 10 it's coming up in an ineffective assistance claim. I can cite 11 you to Breakiron and Johnson v. Armontrout. In our brief 12 lawyers are making choices. In those cases the question is are 13 they informed choices, are they reasonable choices, are they 14 competent choices, are they strategic choices. And if the 15 choice is don't be stupid, it can't be her, that is not a 16 strategic choice, that is a tragic misjudgment. Implicit in 17 the word "misjudgment" is that someone's making a choice. But 18 if it is a tragic misjudgment, I think it's ineffective 19 assistance. 20 The next thing I'd say is this. We're told that there 21 can't be any doubt that these transactions were effectuated so 22 that there would be tax lawyers and tax losses in the prior 23 year and it's ludicrous to think otherwise. Of course that's 24 why the transactions were being done. There is no doubt that's 25 why these transactions were being done in February or March. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009503 --- PAGE BREAK --- Case 1:20-cv-00330-PAE Document 61102/20 Filed 02/24/22 Page 123 of 130 A-5808 C2GFDAU3 Edelstein 351 1 said that you had a conversation with Susan Brune, yes or no? 2 A. Yes. 3 Q. Okay, and as a result of that discussion you decided what 4 you would omit from the brief, correct? 5 A. I wouldn't characterize it as omit. 6 Q. Okay, let's just stop there. You and Susan Brune discussed 7 the fact that you wouldn't include certain things you knew 8 about before the juror note in your brief, yes or no? 9 A. Yes. 10 Q. So isn't that a decision that you made with Susan Brune 11 about what you would omit from the brief, yes or no? 12 A. Yes. 13 Q. So when you answered my questions a few minutes ago when I 14 asked you whether you decided with Susan Brune that you would 15 omit something, you said no. Was that an untrue answer before? 16 A. Well, I'm not sure if that was the exact question. I'm 17 not -- I'm not trying to lie here or give you a hard time. 18 These are difficult questions to answer. In looking back and 19 trying to figure out what the process was for writing this 20 brief, if I had to do it over again would I do it differently? 21 Yes. In hindsight should we have dropped a footnote saying 22 that we, you know, knew that there was a suspended lawyer with 23 the same name? If I had to do it over again I would certainly 24 do that. And I'm very sorry for any misimpression the brief 25 has created. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00009412