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The case involved the largest single drug bust in D.C. history, and after eight weeks of trial, the last thing a defense attorney wanted to hear was concerns about the jury. But just after closing statements in a drug-conspiracy trial last month at the U.S. District Court for the District of Columbia, Judge Ellen Huvelle thought there could be a problem. Only then had she run the jurors’ names through criminal-background checks. The system flagged four jurors — something none of them had disclosed during jury selection. Had they lied? Or were the data — run by the FBI and notoriously unreliable — incorrect? The question was hardly incidental. Last year, Chicago-based U.S. District Judge Rebecca Pallmeyer dismissed two jurors during deliberations in the corruption trial of former Illinois Gov. George Ryan, after the Chicago Tribune found that they had concealed their arrest records during jury selection. Ryan is free on bail while an appeals court looks at whether the jury problems merit a reversal. The Ryan case drew attention across the legal world. Convicted felons are barred from serving on federal juries. But most courts rely on individual jurors to tell the court about any convictions, rather than run criminal-background checks on the jury pool. Indeed, the Administrative Office of the U.S. Courts, which oversees the federal judicial system, keeps no data on which courts run background checks. But that may be changing. At the upcoming trial of Vice President Dick Cheney’s former chief of staff, I. Lewis “Scooter” Libby Jr., Judge Reggie Walton will check the criminal backgrounds of potential jurors before lawyers make their final selections. The move comes at the request of Special Counsel Patrick Fitzgerald, who specifically noted the Ryan incident during a recent court hearing. Following the former governor’s trial, judges on the district court in Chicago said they would start running checks for some high-profile trials. In Washington’s federal court, criminal-background checks occur only in big cases, and the ultimate decision is left to the individual judge. Judge Royce Lamberth, for instance, ran background checks during the trial of the notorious drug gang Murder Inc. in 2002. Assistant U.S. Attorney Amy Jeffress, who was a prosecutor in the case, says that although some of the jurors weren’t immediately forthcoming about prior arrests, nobody was dismissed because of criminal history. “In a longer trial where you don’t want to have any problems, it’s worth doing, but it’s not necessarily worth doing in an average trial,” she says of background checks. But running such checks is not the practice in D.C. Superior Court, says spokeswoman Leah Gurowitz. Although some judges and attorneys are concerned that the background checks could be an invasion of privacy, U.S. District Judge Paul Friedman is not opposed to the practice because, he says, “if they are supposed to answer a questionnaire under oath and tell the truth, why not have a fail-safe mechanism of preventing” convicted felons from becoming jurors? But during the drug case before Huvelle, the background checks were put off until the trial was nearly complete. Two defense attorneys in the case say Huvelle forgot to run the checks until then. “That was the reason it was kind of a surprising issue,” says Rudy Acree, who represented one of the four defendants. Huvelle could not be reached for comment. The trial featured four defendants charged in a cocaine-trafficking conspiracy that centered on the seizure of nearly 100 kilos of cocaine and almost $1 million in cash — all of which the prosecutors displayed in the courtroom during trial. Two defendants were acquitted, and the jury has yet to decide the fate of the last two. When the system flagged four jurors, Huvelle called three of them — one of whom was an alternate — in for further questioning, the defense attorneys say. (Huvelle did not call the fourth because he was far down the list of alternates.) Two said the names were wrong, claiming either that their Social Security numbers did not match or they had never been in the jurisdiction where the incident occurred. The jurors’ responses were not entirely unexpected. FBI data do not always show whether an arrest or charge resulted in a conviction. Sometimes names come up that are similar but not exactly the same, which is why the data cannot be the sole basis for dismissing a juror. But the third juror had two possible criminal charges flagged. Attorneys say that at first, she denied having anything to do with the charges. But after they peppered her with more questions, the attorneys say, she admitted that one of the charges, a 22-year-old arrest, could have been her, but that her arrest had never led to a formal conviction. Neither side decided to throw the woman off the jury, but the incident could become part of an appeal, Acree says. “It’s one of those things where you can’t really rule anything out,” he says. The jury began deliberations in the case on Dec. 12 and broke for the holidays on Dec. 21. Either way, says Jon Norris, a defense attorney whose client in the case was acquitted, “you expect to have some reliance that the jurors you pick are going to be the ones that deliberate.”
Emma Schwartz can be contacted at [email protected].

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