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Lack of truthfulness on jury questionnaires is a growing problem that is prompting calls for criminal background checks of jurors. Jurors’ criminal records are being discovered during or after trial, triggering mistrials and providing grounds for appeal across the country. Many in the legal profession – particularly prosecutors – are calling for background checks. In Boston, prosecutors now conduct regular criminal background checks on jurors in homicide cases after fallout from a 2004 murder trial, during which three jurors lied about their criminal records, causing the trial in the murder of a 10-year-old girl to be declared a mistrial. In Illinois, where two jurors were caught lying about their criminal pasts in the recent corruption trial of former Gov. George Ryan, a federal judge is considering a proposal to allow federal prosecutors to conduct background checks on jurors in certain high-profile cases. Also in Illinois, another federal judge recently barred prosecutors from conducting background checks of prospective jurors in an upcoming corruption trial involving former high-ranking Chicago city officials. In Ohio, a coalition of defense attorneys recently unsuccessfully sought to stop a county prosecutor’s office from checking into jurors’ backgrounds. The issue also has caught the attention of the American Bar Association, which last year adopted new Principles for Juries and Jury Trials. One recommendation: If a party is going to conduct background checks, then the information should be shared with the other side. “I think finding good, efficient ways to get information about potential jurors is what we should be working toward in the system,” said New York Law School Professor Randolph Jonakait, who teaches evidence and criminal procedure and supports the use of criminal background checks on jurors. “From a lawyer’s standpoint, the more you know about the potential juror, the more comfortable you are,” Jonakait said. “And it’s obviously better to have [information] before selecting a jury than if it just comes out happenstance during the trial or after.” He sees two advantages to conducting background checks on jurors: It helps reveal information that jurors might be too embarrassed to talk about or disclose on a questionnaire, and it catches the liar who deliberately withholds information. But the defense bar has expressed several concerns about investigating jurors’ backgrounds. The tactic, they assert, gives prosecutors more leverage in a trial because they don’t always have to share the information with the defense. Also, background checks discriminate against minority jurors who are more likely to have run-ins with the law, some argue, and could scare away potential jurors who might fear the government is snooping on them. “We don’t want to do things that chill jurors,” said Miami attorney Michael S. Pasano, chairman of the American Bar Association’s Section of Criminal Justice. “If suddenly you want to do some systematic background checks with lots of bells and whistles, that might happen. As a former prosecutor and now a defense lawyer . . . I think I still lean on not being a fan of this.” Pasano of the Miami office of Washington-based Zuckerman Spaeder, believes that juror misconduct – specifically lying about a criminal past – is a rare problem that occurs mostly in high-profile cases, where people are more likely to lie to gain the celebrity status of sitting on a big case, or have input on an issue they feel strongly about. “By and large the system works pretty well, but occasionally a problem crops up like this,” Pasano said. A PROSECUTOR’S VOW Prosecutors and defense attorneys alike have noted that there is no law on the books that bans jury background checks. Some states, such as New Hampshire, Iowa and Indiana, mandate that if background checks are conducted, the information must be shared by both sides. But states such as Virginia and Georgia have granted broader latitude to prosecutors, allowing them to check a juror’s background without having to share the information with the defense. In the 2000 landmark case that granted prosecutors that broad authority, the Virginia Court of Appeals ruled that it isn’t unfair for prosecutors to conduct criminal background checks on jurors and withhold the information from the defense. Most prosecutors, however, claim that they do share the information. They view the background check as a solid investigative tool that helps them weed out the liars early on and avoid a mistrial down the road. “It works,” said Suffolk County, Mass., District Attorney Daniel F. Conley, who in the last year and a half has had more than a dozen potential jurors dismissed from cases for lying about their criminal pasts. “We believe that we are getting juries that are open minded, that are not carrying a bias to police or prosecutors.” Outraged by a 2004 murder case that ended in a mistrial due to jury misconduct, Conley vowed a year and a half ago that he would conduct criminal background checks on every juror in a case involving homicide or other violent crimes. The 2004 murder case, which involved the death of a 10-year-old girl, was declared a mistrial because several jurors were caught lying about their criminal records. “I was very upset about it . . . . That case just so outraged the citizens of Boston to know that justice to her was denied because of four or five tainted jurors, and I spoke out,” said Conley. He said that case “confirmed our suspicions that we should be doing [background checks] in all cases because there were individuals finding their way onto juries that were biased.” For Belknap County Prosecutor Lauren Noether of New Hampshire, background checks on jurors give her peace of mind. “We know who we’re dealing with up front. That’s the whole idea,” said Noether, whose office runs background checks on all prospective jurors, seeking convictions or driving offenses in New Hampshire. Noether noted that information obtained in a background check doesn’t automatically disqualify someone from jury duty. Sometimes omitted information in a jury questionnaire can be a big problem, but other times it’s not, she said. Either way, Noether said, she’d rather have the background checks than not. Judith Mullen, an assistant prosecuting attorney in Hamilton County, Ohio, agreed: “If you think someone is lying to you about their criminal history, [a background check] helps you.” Mullen, however, has only once conducted a criminal background check on jurors. It was during a 2004 murder trial in which two prospective black jurors were disqualified after prosecutors found that they had allegedly lied about their criminal records. “Her responses just didn’t jive with what was on her form. It made me suspicious,” Mullen recalled about one of the jurors. The defendant was convicted, but the case is on appeal. As for the background checks, Mullen said, “It proved helpful, and I’d do it again if necessary.” THE VIEW FROM CHICAGO But criminal defense attorney Thomas A. Durkin, who is handling a high-profile corruption and fraud case in Chicago, doesn’t understand all the hype about background checks. Nor does he see a need for them. “I’ve been trying cases in the federal court in Chicago and elsewhere for 32 years and have never done [a background check], and have never known the need for it,” said Durkin of Durkin & Roberts in Chicago, who is representing Robert Sorich, former patronage chief to Chicago Mayor Richard M. Daley. Sorich and three other men are charged with mail fraud for allegedly faking job-interview scores and taking other illegal steps to get around a court order barring the use of political patronage in hiring city payroll workers. The defendants have pleaded not guilty. In that case, federal prosecutors had sought to check the backgrounds of potential jurors in the wake of the Ryan trial, during which two jurors were dismissed eight days into deliberations for failing to disclose their arrest records on a court questionnaire. But U.S. District Judge David H. Coar barred the prosecution in Sorich’s case from running the background checks. He found that there could be “a coercive effect” if jurors found that prosecutors were digging into their pasts. Durkin applauded Coar’s decision. “My biggest concern is that it would give people another reason to not want to serve on a jury,” Durkin said. “I think background checks would unfairly discriminate against minorities who are more apt to be victims of the criminal justice system . . . and it’s hard enough to get minority jurors to begin with.” This article originally appeared in The National Law Journal, a publication of ALM.

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