Defendant Recruited Seven Actors to “Testify” in Fraud Trial
Vermont resident Alison Gu has filed a petition to vacate her 2018 bank-fraud conviction and to strike an order requiring her to pay $107,000 in restitution. She exhausted her appeals long ago, and has served her sentence already, except possibly for some time on supervised release. But Gu is still challenging the conviction, claiming she received ineffective assistance of counsel.
She is said to be especially upset with the defense lawyer who refused to call any of the actors she recruited to serve as witnesses."
The idea of importing actors and providing scripts [for their testimony"] appears to be a novel idea," suggested the Manchester Journal, according to a quick survey of some lawyers and judges." Yes, and like so many novel ideas, this one is being criticized by so-called experts" who are probably just mad they didn't think of it first.
According to the reports (see also this one), Gu, who has at least nine listed aliases," was charged with bank fraud, falsifying a passport application, and aggravated identity theft for a scheme between 2013 and 2015. It doesn't seem to have been especially complicated, as it involved applying for mortgages under fake identities and then using the money to buy properties in various states. The articles say she targeted five banks and bought at least six properties, but her trial focused on a more limited set of allegations.
One person, two identities, three crimes," the prosecutor said in his closing argument at Gu's trial. Two hours" was how long it took the jury to convict her, three years" was the length of her prison sentence, and seven lawyers" is the number of lawyers who have withdrawn or been fired from her defense team over the years. She has filed complaints against some if not all of them.
The person she's mad at now is Lisa Shelkrot, who represented Gu at trial and had an interesting experience in 2017 while preparing some witnesses Gu identified. (She related this in an affidavit filed after the court held Gu had, unwisely, waived attorney-client privilege by filing her action.) As Shelkrot was chatting with three of the witnesses, one happened to remark, It's for the movie." Um, what movie would that be? she asked. Apparently confused, the witness responded, Are you a real lawyer?"
Shelkrot said she was indeed a real lawyer, with a real case and a real client, and that we were going to real court on Monday, where the witness would be expected to take a real oath."
The fun continued:
As she asked more questions ... , Shelkrot said it became clear to her that the witness had been recruited to come to Vermont to play a part in some kind of movie or performance.
The New York actor had no actual knowledge about any facts about the Vermont fraud case and had been coached on what to say, Shelkrot reported.
Shelkrot said the defense team then got everybody into a conference room or on a speaker phone and she recorded the conversation. As she investigated further, Shelkrot said she was then told that the three witnesses" in her office were actors, and they had responded to an advertisement in a Chinese language newspaper in New York looking for people to perform their roles.
They were to be paid upon their return, and had not received any compensation yet," Shelkrot said in her affidavit.
The actors said they had never heard of a Chinese private investigator Wong" that Gu had maintained she had hired to work on the case in New York, Shelkrot reported.
They had been given scripts and photographs to prepare them to play their roles," she wrote.
While this precise dilemma is not something discussed in ethics class (it appears to be a novel idea," remember), the general situation is. Namely, what do you do if you think your client's planning to lie on the stand or have others lie for her? You have a duty to the court and legal system not to put on false evidence, but also a duty of loyalty and confidentiality to the client. Most authorities have resolved this by saying the lawyer can't elicit false testimony, but also can't keep the client off the stand if she insists on testifying. So you call the client to the stand, let her talk, ask no questions, and then have a seat.
Something like that seems to have happened in Gu's case. In a meeting the day after the incident, Alison claimed not to know anything about the plot" and wondered if the four witnesses" who hadn't yet admitted they were actors could still testify. Uh, no, Shelkrot responded. (She had sent all seven home.) Gu then chose to testify at trial, and got her three children to testify for her as well. According to the report, the judge believed Gu committed perjury" herself and was found to have suborned perjury" by having her children testify. The report doesn't say whether Shelkrot asked them any questions, but my guess would be no or very few.
On June 19th, the judge denied Gu's request to delay a hearing on her ineffective-assistance claim, and that had been scheduled for the following week. So far, no report on what happened, if anything. What's not going to happen is a finding of ineffective assistance, because it looks to me like Shelkrot handled this novel situation exactly the way she should have. If Gu has yet another lawyer representing her now, that person might face a similar dilemma.
According to the reports, Gu was charged with passing a bad check while still on supervised release, and so is facing another federal charge for that. So it seems doubtful she has learned her lesson.
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