Background Check Myths - The National Criminal Check

We still take frequent phone calls from clients asking how firms can offer "national criminal record checks" for $24.95. So now is a good time to review what constitutes a “national criminal check” or “nationwide criminal background check” as the product is often described.

The national criminal check is the unicorn of the industry, a complete myth. Usually, the firm offering this search is checking a compilation of conviction data--people who actually were sentenced to prison. However, only a very small percentage of people charged with crimes ever do any prison time. National offender databases are misleading: they miss charges that have been pled out, dismissed, not prosecuted.

Everyone is familiar with scenes from movies where a law enforcement agent runs a quick database check and gets an entire criminal history in seconds. In real life, things tend to be a bit more convoluted.

One database used by law enforcement is the National Crime Information Center (NCIC) and it is typically limited only to law enforcement. And even NCIC data is riddled with gaps, with as many as 50% of all criminal cases failing to hit the database. So how do you proceed to check a person for crimes committed across 50 states in the USA?

Convictions data is a start but we always go back to the primary sources of criminal records: the state court system. On the state side, this means searching a higher court (Superior Court) that handles major crimes in a particular county, as well as lower courts with more limited jurisdiction. These courts are called district courts or municipal courts. Don’t make the mistake of skipping this step as district courts can hear cases involving serious criminal matters; for example in Massachusetts, some felony cases are found in district court.

And on the federal side, you will be checking for criminal cases in the national PACER system.

So just beware when you are scanning someone for a criminal history: to do it right, the investigator will probably need to leave the office and pull some paper records. A thorough investigation will take more than just a database search.

Client freed after 3 decades in prison

In July 2014, client Victor Rosario was freed after spending 32 years behind bars for a 1982 arson fire that killed eight people. A Middlesex Superior Court judge overturned Victor Rosario's one arson and eight murder convictions based on advances in arson forensics as well as major errors in the handling of the investigation, including interviews done with witnesses and Rosario himself.

Lawyer liable for Ponzi scheme of client?

A MA Superior Court judge has ruled that the law firm Holland & Knight could not be sued by investors for failing to ensure that one of their clients followed their legal advice (the client ignored his lawyers and proceeded to defraud the investors in a Ponzi scheme--not exactly in keeping with counsel’s advice).

Holding here in essence: lawyers are not mothers and will not be held liable for failing to scold and nag until the job is done well.

MA high court: high court rules warrant needed for cell phone search

In an interesting cell phone data privacy case, the Supreme Judicial Court of Massachusetts held that law enforcement must obtain a warrant before using a suspect's cell phone data to track his movements via GPS. SJC held a warrantless search violated Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures.

The plaintiff in the case, Shabazz Augustine, was a suspect in a 2004 homicide of his girlfriend. Police obtained his cell phone records from Sprint that showed what towers were used as he traveled in Boston. Police relied on a federal law that only requires “information to be relevant to an investigation” in order to get the data, as opposed to requesting a search warrant (and having a judge find probable cause regarding the target’s involvement in the case).

Practically speaking, the case is somewhat dated: police in most criminal cases now request warrants for such data anyway.

Did JPMorgan Chase know Madoff ran Ponzi scheme?


A lawsuit filed in federal court in Manhattan last week on behalf of shareholders alleges Chief Executive Jamie Dimon and 12 other current / former executives and directors were aware of the Bernie Madoff Ponzi scheme:

“The lawsuit said JPMorgan examined reports that Madoff was required to produce on the late Norman Levy, a former client of JPMorgan and Madoff, and that the reports gave the impression that Madoff was not investing Levy's money or lending him money on margin. Shipley and Lipp would meet Madoff for lunch from the 1990s through the 2000s, frequently along with Levy, and raise their concerns, the complaint said. But in the end, the bank was "petrified" of losing business from Levy, "an extremely important, preferred top-tier client" of its private banking unit, the complaint added.”