In 2009, Collins’s lawyers at Cooley couldn’t persuade federal jurors in Manhattan that their client had been an innocent pawn in efforts by Refco executives to fraudulently conceal $2.4 billion in losses. One year later, the defense failed to convince Manhattan federal district court judge Robert Patterson Jr. that new evidence from Weil, Gotshal & Manges, which had served as counsel to T.H. Lee in its leveraged buy-out of Refco in 2004, warranted a retrial.
But now Collins’s lawyers, led by Cooley’s William Schwartz, will have another go at each of those defenses. On Monday the U.S. Court of Appeals for the Second Circuit vacated Collins’s conviction and ordered a new trial, finding that Judge Patterson’s ex-parte attempts to deal with an agitated juror during deliberations had “deprived Collins of his right to be present at every stage of the trial.” ( Click here to read the Second Circuit’s 23-page opinion, penned by Circuit Judge Denny Chin and joined by Circuit Judges Guido Calabresi and Susan Carney.)
Here’s how the appellate panel described the events that unfolded in July 2009, at the tail end of Collins’s trial: Days into the deliberations, after the jury reported that it had deadlocked, a juror (juror 4) complained that another juror had threatened to cut off his finger. The jury foreman later sent the judge a note that effectively blamed the dispute on juror 4, asserting that he was behaving oddly, pressuring jurors to barter their votes, and threatening to allow the case to end in a mistrial.
Judge Patterson disclosed the contents of the original note–but not the foreman’s note–to defense counsel and prosecutors. He then had an ex-parte conference with juror 4, advising him that his behavior was “not conducive to getting this matter resolved, and it is important to both parties that the matter be resolved.” The juror again accused his fellow jurors of physical intimidation. Judge Patterson urged him to “[k]eep an open mind.”
The judge read a transcript of the private conference to counsel for both sides later that day. Collins’s lawyers moved for a mistrial. The judge denied the motion, and the next day, on July 10, the jury reached a guilty verdict on five of the 14 counts the government alleged.
“We cannot say, with ‘fair assurance,’ that the district court’s errors in this case did not substantially affect the verdict,” the Second Circuit panel ruled Monday. “The court singled out a dissenting juror, and emphasized to him the importance of reaching a verdict. We cannot ignore the possibility that Juror 4 walked out of the ex parte conference with the impression that he should not stand in the way of a prompt resolution of the case.”
Less than a third of Collins’s 133-page Second Circuit appellate brief concerned the trial court’s handling of the jury deliberations. Collins’s lawyers at Cooley devoted most of their brief to claims that Judge Patterson had “hamstrung” the jury by barring the defense from eliciting witness testimony about Collins’s failure to disclose a key contract to counterparties in Refco’s 2004 leveraged buyout. (Monday’s appellate decision doesn’t address those claims.)
Questions related to the same contract, called a Proceeds Participation Agreement, were also central to Cooley’s post-trial efforts to persuade Judge Patterson to grant Collins a retrial. Cooley argued that they’d gathered previously-withheld evidence from Weil Gotshal contradicting statements by Weil partner Jay Tabor, who testified at trial that Collins had failed to inform him about the PPA during Refco’s buy-out talks with T.H. Lee in 2004. Judge Patterson denied the retrial motion in March 2010, just before entering his final judgment to convict Collins of conspiracy to commit securities fraud, wire fraud, bank fraud, and money laundering; deceiving auditors and the Securities and Exchange Commission; securities fraud; and wire fraud.
We left a message with Cooley’s Schwartz but didn’t hear back. Schwartz issued this e-mailed statement through a Cooley spokesperson: “After this long fight, we are very gratified by [the Second Circuit's] decision.”