Criminal checks on jurors OK'd during trial

The state's highest court ruled yesterday that prosecutors can run criminal background checks on jurors during a trial if government lawyers have reason to believe that jurors failed to disclose criminal records that could affect their ability to judge the case fairly.

The unanimous ruling, hailed by prosecutors and criticized by some criminal defense lawyers, paves the way for the retrial of Joseph Cousin in the notorious 2002 murder of 10-year-old Trina Persad in Dorchester.

Cousin's first trial ended in a mistrial in December 2004 after Suffolk County prosecutors ran background checks on members of the deadlocked jury following a note from the jury foreman to the judge about possible bias against police. The checks found that five jurors had criminal records and prompted the judge to remove three, leaving too few to proceed.

In an appeal, Cousin's lawyer, Willie J. Davis, argued that prosecutors ran the checks to derail a possible acquittal and that a retrial triggered by this kind of ploy would violate the constitutional ban on double jeopardy.

But the Supreme Judicial Court said prosecutors did nothing wrong.

"Inquiring into the criminal records of jurors in a criminal case for the purposes of determining their qualifications to serve and their impartiality fits squarely within the 'criminal justice duties' of prosecutors," Justice Judith A. Cowin wrote on behalf of the court, quoting state law on prosecutors' right to gain access to criminal records.

Indeed, Cowin wrote, some of the jurors' criminal records were so extensive - two had a total of 75 charges between them - that it was reasonable to assume they deliberately concealed their backgrounds on questionnaires and during interviews with lawyers before empanelment.

In a concurring opinion, Justice Roderick L. Ireland agreed that prosecutors had the authority to run the background checks and that Superior Court Judge Margaret R. Hinkle rightly declared a mistrial after removing the offending jurors.

But he said the high court should have limited the time prosecutors can run such checks and specified that they should take place before the jury is sworn in.

"The findings of the judge in this case notwithstanding, I am not comfortable with a prosecutor waiting until jurors are deliberating before conducting a [Criminal Offender Record Information] check," he wrote.

The day before the high-profile case ended in a mistrial, the same jury acquitted Marquis Nelson, Cousin's codefendant, of first-degree murder and several lesser charges in connection with the slaying of Persad. She was killed by a shotgun blast in what police called a botched drive-by shooting involving Boston gangs.

Immediately after the mistrial, Davis said that the timing was no coincidence and that one need not be a "PhD in applied mathematics from MIT" to realize that police and prosecutors ran the unusual background checks because they feared a second acquittal.

But the high court agreed with Hinkle that the jurors who withheld information were at fault, not prosecutors.

One juror, a 32-year-old woman, had a seven-page criminal record with 53 entries, including an outstanding warrant, according to the justices. Another juror, a 63-year-old man, had a three-page record with 22 entries, including a 1971 conviction for assault and battery on a police officer.

Massachusetts law permits people with criminal records to serve on juries, as long as they have not been convicted of a felony within the previous seven years. But prosecutors said at the time that they probably would have opposed the seating of such jurors because their backgrounds could signal hostility toward the police.

As a result of the mistrial in the Persad case, the court system revised jury questionnaires to clarify what prospective jurors must report about criminal records and potential conflicts of interest. Jury specialists said vague language might have contributed to misunderstandings.

Suffolk District Attorney Daniel F. Conley praised yesterday's ruling and said the retrial will be scheduled when both sides appear in Superior Court Feb. 15. Cousin, 23, is being held at the Nashua Street Jail.

"We have been steadfast in our belief that state law would allow us to bring this defendant to trial once more, and today's ruling bears that out," Conley said in a statement.

His spokesman said Suffolk prosecutors now routinely run background checks on jurors in homicide trials or cases involving serious violent crimes.

Geline W. Williams, executive director of the Massachusetts Association of District Attorneys, applauded the decision, but said she doubted that prosecutors would routinely run time-consuming criminal background checks on all jurors.

"The core principle is the Commonwealth, as well as the defendant, is entitled to a fair trial, and if there is a legitimate issue of potential bias by jurors, it needs to be addressed," she said.

Davis, a former federal magistrate, said he is considering challenging yesterday's ruling in the federal courts.

Randy Chapman, president of the Massachusetts Association of Criminal Defense Lawyers and a former Essex prosecutor, said he supported more extensive interviews and background checks of potential jurors to find possible biases against police or defendants. But he agreed with Ireland that it should take place before a jury is picked, not during deliberations.

"Somebody should not be allowed to put something in their back pocket and bring it out at a later point to trigger a mistrial," he said.

The Persad trial was one of the most closely watched murder cases in Suffolk in recent years. Trina Persad was mistakenly shot on June 29, 2002, at Jermaine Goffigan Park, where she had been playing with her brother, sister, and a close friend of her mother.

Prosecutors said Cousin and Nelson belonged to the M.I.C. street gang, which went hunting for rival Big Head Boyz gang members.

Jonathan Saltzman can be reached at jsaltzman@globe.com.