Accused mobster James "Whitey" Bulger is fighting the government’s request to conduct criminal background checks on jurors who pass preliminary screening for his trial.
Bulger’s trial on 19 murder charges plus counts of extortion, loan sharking, bookmaking, drug sales and violations of the Racketeer Influenced and Corrupt Organization Act is scheduled to start on June 10.
The government asked the judge to permit the screening on Thursday. Bulger’s lawyers at Boston’s Carney & Bassil filed their opposition motion the next day.
They emphasized that no federal statute mandates such checks. The government cited the 2004 First Circuit ruling in U.S. v. McIntosh, but Bulger’s team said that court upheld the government’s check of a disruptive juror’s criminal records during jury deliberations, not before trial.
They also cited a Massachusetts disciplinary rule barring lawyers from conducting harassing investigations of jurors.
"Here, the government is requesting background checks of potential jurors that have not posed any prior issues or indicated any deceitful behavior," attorneys J.W. Carney Jr. and Henry Brennan wrote. "Furthermore, these criminal background checks would be conducted with the knowledge of potential jurors who may experience this intrusion as a harassing investigation."
Furthermore, they said, "One’s criminal record is no more relevant to the juror’s fitness to serve on the jury than any of the other inquiries into the juror’s background."
The government argued the screening could prevent juror misconduct like that in Gary Lee Sampson v. U.S. In that case, the government is appealing District of Massachusetts Senior Judge Mark Wolf’s May 2012 order vacating a death sentence because a juror lied on 10 of 77 voir dire questions. The juror in that case lied about her ex-husband’s substance abuse and threats to her. She also concealed a daughter who used drugs and spent time in prison.
"Conducting a criminal background check on Juror C would not have yielded the information that led the district court to reverse the conviction," Bulger’s attorneys wrote.
The Boston U.S. Attorney’s Office did not respond to a request for comment.
Sheri Qualters can be contacted at firstname.lastname@example.org.