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An Ohio murder case is shedding light on prosecutors’ use of a federal criminal records database to run background checks on jurors—an action that defense counsel charge is meant to disqualify some jurors. In the case, which involves a black defendant, two prospective African-American jurors were disqualified when prosecutors ran criminal background checks and found that they had allegedly lied about their criminal past. Ohio v. Timothy Jordan, No. B0404140 (Hamilton Co., Ohio, Ct. C.P.). Martin Pinales, vice president of the National Association of Criminal Defense Lawyers and a partner in Cincinnati’s Sirkin Pinales & Schwartz, said that the frequency of prosecutors’ use of background checks on prospective jurors was not widely known by defense attorneys. “We had always heard rumors [that prosecutors were using federal databases to run background checks on jurors to disqualify them], but never heard confirmation until now,” Pinales said. “But it does happen, and it may be a frequent practice.” Pinales added that the practice could intimidate minorities from wanting to serve on juries. “It could have a very chilling effect,” he said. Request for mistrial Robert Ranz, the defense counsel in the Ohio case, requested a mistrial. He charged that prosecutors checked only the records of three of the four prospective African-American jurors because they had indicated that they did not drive, which could have been the result of a probation or parole restriction. Ranz, a Cincinnati solo practitioner, also alleged that prosecutors deliberately checked the black jurors in an effort to disqualify them because the defendant was also black. Hamilton County Assistant Prosecutor Judith Mullen, who argued the case along with Assistant Prosecutor Michael Bachman, said that they used the database because they had “reason to believe” that some of the jurors lied about their criminal background. Mullen said that it was not a common practice in Ohio. She declined to speak further about the case or about the use of criminal background checks on jurors because an appeal is expected. Prosecutors searched criminal records at the federal National Crime Information Center (NCIC), a national database available to law enforcement officials, including prosecutors. However, defense attorneys are not granted access to the records, and prosecutors are not required to alert the defense when they are running background checks on prospective jurors, according to Ranz. Ranz said that if background checks were being conducted, both sides should have access to the records. “One of my arguments [in the request for a mistrial] was equal protection, equal access,” Ranz said. “It’s not a level playing field . . . .No one knew it was going on, nobody knew anything. [The database] is supposed to be used for the administration of criminal justice.” Steve Fischer, a spokesman for the Federal Bureau of Investigations, said that during discovery, defense counsel can request copies of NCIC records that the prosecution has obtained. The defense could also seek a court order, which would be sent to the FBI for approval, then back to the judge for a final ruling. Hamilton County Common Pleas Judge Mark Schweikert recently denied Ranz’s request for a mistrial. The jury found defendant Timothy Jordan guilty of aggravated murder in the April 2004 shooting of RaeMone Williams. “I think it is an improper use [of the database],” Pinales said. “Law enforcement purposes are to apprehend and detect crime. The trial is a separate issue, and it sets up an unfair advantage for the prosecution,” he said. “I don’t agree with that judge.” The National District Attorneys Association declined to comment. The Ohio Prosecuting Attorneys Association did not return calls seeking comment. Cases where criminal background checks on jurors are performed-or when the practice is brought to light-are rare. But they do exist. Defense counsel appealed a 2002 aggravated assault conviction in Georgia, alleging that they were denied discoverable material because prosecutors had run background checks on the jurors in the case and did not share the evidence. The court found that the defense had no authorization to see them. Williams v. State, No. A02A0645 (Clayton Co., Ga., Super. Ct. 2002). The defense attorney in the case, Amy Abrames, said that she hasn’t run across another district attorney’s office that openly runs background checks on prospective jurors. “It would be a wonderful tool if I was a prosecutor,” she said. “It would give me a lot of insight into the jurors. I’m sure I’d use it as often as I could.”

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