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A Massachusetts district attorney whose office lost a murder case against one of two co-defendants�allegedly because four jurors and an alternate lied about their criminal backgrounds�has vowed to push for legislation modeled on federal law that will jail jurors who lie. The jurors and the alternate allegedly lied about their criminal backgrounds in written jury questionnaires and during voir dire, according to Suffolk County, Mass., District Attorney Daniel F. Conley. While defense lawyers in the case don’t see a connection between the jurors’ misstatements and the outcome�the judge declared a mistrial for the other co-defendant�Conley feels hamstrung by state law that limits punishment to intentional misrepresentation made for the purpose of securing or avoiding jury service. “It’s difficult to prove,” Conley said. The five had undisclosed criminal records that ran from felony assault to driving with an expired license, Conley said. The murder case was Commonwealth v. Nelson and Cousin, nos. CR02-10866, -10867 (Suffolk Co. Super. Ct.). Conley said he will push for legislation that is modeled after federal law, according to which making a materially false, fictitious or fraudulent statement, written or oral, in a judicial setting is a crime. He might seek a maximum penalty of a year in jail, he said, but no final decision has been made. The maximum penalty under current law is a $2,000 fine. Checks will be routine Conley’s office will now routinely run criminal background checks on empaneled jurors in all felony cases and will “suggest that judges inform the jury that the prosecution is going to run their record” and give them a “last chance to self-identify themselves in which case we wouldn’t prosecute,” he said. The American Prosecutors Research Institute does not keep track of jurisdictions that run juror background checks. Conley, whose county includes Boston, thinks no other Massachusetts office routinely performs background checks. After the jury acquitted one defendant, the prosecutor decided to run background checks on the jurors and reported his finding to Judge Margaret Hinkle. Over the objections of Willie Davis of Boston’s Davis, Robinson & White, who represented the remaining defendant, Hinkle decided to voir dire those five jurors, one at a time. As each of the first three jurors she questioned admitted having incorrectly stated that he or she had no prior involvement with the court system�criminal or civil�the judge dismissed the juror. The judge “had no need to voir dire the remaining two, because we were already down to 11 jurors,” Davis asserted. Because 12 jurors were needed, a mistrial was declared, although there had been no finding that the original jury had reached an impasse in its deliberations. Davis said he will file a motion to dismiss. “I don’t think anybody ought to be running a criminal check on a juror once the jury has been sworn without a court order,” David asserted. Neither side seems quite sure what the law is. “We’re researching it right now,” Davis said, while Conley said the law explicitly allows clerks and judges to run such checks, but doesn’t prohibit district attorneys from doing so. Conley asserted that there was sound reason to dismiss the jurors. “The Commonwealth was prejudiced because the jurors lied,” Conley said. “If we had known, we would have challenged those jurors for cause and the court could have made an inquiry into their ability to be fair and impartial.” If the judge had not found cause, the prosecution might have exercised peremptory challenges against one or more of them, he added. If Davis loses his motion to dismiss in the trial court, he will take a writ to the Supreme Judicial Court, the state’s highest court, he said. James Budreau, the Boston solo practitioner representing the defendant acquitted in the slaying, compared the situation the court faced there with that of the judge in the Martha Stewart trial. Stewart, who was convicted in March of lying to government investigators about a sale of stock, contended that a juror had lied on his questionnaire. Stewart’s lawyers alleged that the juror had lied to get on the jury so that he could convict their client. But the judge found their proffered proof of juror bias insufficient to overturn the verdict. The juror was not prosecuted.

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