From the Tribune:

Jury pools can face probes in sensitive trials

Ryan case sparks move to avoid bias, scandal
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By Matt O'Connor
Tribune staff reporter

December 11, 2006

Hoping to avoid the jury controversy that threatens to overturn former Gov. George Ryan's conviction, federal court officials in Illinois have started conducting criminal background checks on prospective jurors in certain higher-profile trials.

But there's one major caveat: The judge presiding over each trial has veto power over whether the background checks will be allowed.

In an interview last week, James Holderman, chief judge of U.S. District Court in Chicago, said the policy change in the aftermath of the Ryan trial is aimed at helping select juries "that will be fair to both sides."

"The higher the profile, the lengthier, the more complicated [the trial], the more likely it is the jurors' backgrounds will have already been checked by the time they are brought into the courtroom," Holderman said in his 25th-floor chambers in the Dirksen U.S. Courthouse.

A prospective juror's criminal background could tailor his or her view of a defendant or the prosecution, advocates of the change say, and lawyers should be armed with that information in deciding whom to select for a jury.

But other judges worry that background checks invade the privacy of prospective jurors and open them to unwarranted, negative publicity.

The need for background checks seemed painfully apparent after Ryan's historic marathon trial narrowly averted a mistrial in its final days earlier this year.

U.S. District Judge Rebecca Pallmeyer dismissed two jurors eight days into deliberations after the Tribune discovered that both had concealed arrest records during jury selection months earlier. Pallmeyer replaced them with alternates and ordered that deliberations start anew.

Ryan was convicted in April on sweeping corruption charges that said as secretary of state and later as governor, he doled out sweetheart deals to friends and used state resources and employees for political gain.

He was to begin serving a 6 1/2-year sentence on Jan. 4. But in a rare move late last month, a federal appeals court in Chicago let Ryan remain free on bail pending appeal after his lawyers argued that the tumultuous jury deliberations raised significant legal questions that could result in a reversal of his conviction.


Value of procedure questioned

Some federal judges question the value of the background checks. U.S. District Judge David Coar, who refused to allow the checks in last summer's trial and conviction of Mayor Richard Daley's former patronage chief, Robert Sorich, said he's concerned for jurors' privacy.

Jurors might not reveal run-ins with the law because of faulty memories or embarrassment, Coar said, yet the judge won't be able to protect them from the issue perhaps being blown out of proportion by the news media in high-profile trials.

"They're dragged in here by the force of a summons and then have their backgrounds exposed that way," Coar said of jurors. "It makes me uncomfortable."

Coar fears that prospective jurors will feel "as if they're criminals or suspected criminals," he said. "I think that's just a terrible message to send."

"The Ryan case is the exception," the judge added. "For the most part, the system works."

But Holderman, who became chief judge in July, said that because criminal records are available publicly, he doesn't view the background checks as "something untoward for the court to do."

Holderman made it clear that the federal judges--appointed to lifetime terms to ensure their independence--will have the final say over whether background checks are conducted in trials in their courtrooms.

He said the court's probation and pretrial services offices would conduct the checks because of their access to "rap sheets" through the National Crime Information Center.

Holderman also felt strongly that the checks should be conducted independent of the FBI or other law enforcement agencies that might have worked with federal prosecutors on the case on trial. Otherwise, the judge said, "I think there would be an appearance of unfairness."

In a case like Ryan's, the background checks would be a mammoth undertaking. In all, 300 people were summoned to court for jury selection in Ryan's case because of its widespread publicity.

If the policy had been in place then, Holderman said, background checks on all 300 would have been conducted in advance of the trial.

After background checks are completed, rap sheets would be kept in the control of the trial judge and not shared with attorneys for the prosecution or the defense, Holderman said.

If during jury selection, a prospective juror omitted an arrest or conviction, the judge would call the lawyers to a sidebar and tell them of the discrepancy. The judge would then privately interview the prospective juror with the lawyers present. Prospective jurors could be dismissed for purposely concealing arrest records.

"Lawyers ought to be aware of the fact that this particular juror has had an experience in life where they have been in the position of a defendant in a criminal justice system and that's an experience that they're going to be bringing to the decision-making process," Holderman said.

"I think the possibility or the probability of a juror intentionally hiding something is pretty low," the judge said. "But I also believe the parties have a right to have as much information as possible."

So far, background checks have been conducted twice in Chicago's federal courthouse, including in the ongoing high-profile trial of a Bridgeview man charged with funneling money to the Palestinian group Hamas.


Four jurors hid criminal records

Background checks also were done in the recent retrial of an alleged crack-cocaine dealer. Prosecutors discovered after the original trial that the lone holdout on the jury against conviction had concealed his criminal record.

U.S. District Judge William Hibbler, who presided over that retrial, said he was surprised that of 35 prospective jurors, four failed to report criminal backgrounds during jury selection.

"That's a significant percentage," Hibbler said.

One claimed to have forgotten an arrest from years earlier, another was embarrassed to bring up a drug arrest and a third had been briefly arrested in a minor incident, he said.

"The more information you have, the better equipped you are to decide if someone can be fair," Hibbler said.

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