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BOSTON �� The Massachusetts Supreme Judicial Court ruled recently that prosecutors could conduct criminal background checks on jurors. The decision also allowed prosecutors to retry a murder defendant despite the trial judge’s declaration of a mistrial during jury deliberations. The judge dismissed three jurors after prosecutors researched their criminal histories. Commonwealth v. Joseph Cousin, SJC-09589 (Mass.) The jurors failed to disclose their criminal records on juror questionnaires, and the prosecutor pulled the records when the original foreperson of the deadlocked jury sent a note saying that some jurors believed the defendant had been “set up” by the police. The criminal trial involved the alleged shooter in the June 2002 murder of a 10-year-old Trina Persad. Prosecutors alleged that Cousin, and a co-defendant who was eventually acquitted, intended to kill rival gang members on the night Persad was killed. Although a Massachusetts state law expressly authorizes the jury commissioner, courts, and clerks of court to access jurors’ criminal record information but does not mention prosecutors, the law “contains no language that would indicate a legislative intent to limit prosecutors’ access” to jurors’ records, concluded Associate Justice Judith A. Cowin. “Our conclusion that the statute contemplates that prosecutors are entitled to examine jurors’ criminal records is not a radical one,” Cowin wrote. “Numerous other jurisdictions routinely permit such access.” Cowin also noted that past state Supreme Court decisions have “recognized that the prosecution has a legitimate interest in securing ‘a jury not unfairly biased in favor of acquittal.’” The defense also argued that the principle of double jeopardy barred the possibility of a new trial, but the Supreme Court agreed with the trial judge’s conclusion that the prosecutor didn’t “act with the intent to cause a mistrial.” “We have been steadfast in our belief that state law would allow us to bring this defendant to trial once more, and the SJC’s ruling bears that out,” said Suffolk County District Attorney Daniel F. Conley, in a statement. Cousin’s attorney Willie Davis of Boston’s Davis, Robinson & Malloy said he’s asking the Supreme Judicial Court for reconsideration of the decision. Davis also believes the Supreme Judicial Court should provide more guidance to lower court judges if it allows criminal background checks of jurors. “If they’re going to allow criminal histories on jurors to be done they should tell the superior court judges the circumstances under which it can be done and when it can be done, to have some kind of continuity,” Davis said.

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