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Prosecution in Ex-Mobster Case Wants Jury Background Checks

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By Kelly Cheung on May 21, 2013 4:01 PM

Imagine being called into a jury and then being asked to submit your fingerprints or social security for your jury background check. Who…me?

Is this an government overreach for people merely serving on a jury? The federal prosecutors against notorious ex-mobster James “Whitey” Bulger don’t think so. They want juror background checks to be done.

Will juror background checks be the new norm? They don't seem necessary since we already use voir dire. It is questionable how useful these criminal background checks will really be in revealing any information to believe a juror will misbehave.

Attorneys for the former mobster believe it will. Bulger is scheduled in June for trial for 19 murders. Prosecutors are asking the judge if they may conduct background checks on the jurors to prevent a possible mistrial. The stakes are high for this case where this 83-year-old man is also being charged with organized crimes such as racketeering, loan sharking, and drug sales.

This is not a usual request for a criminal trial. We already have the voir dire process to select jurors to help weed out potential problems.

Bulger's attorneys think this is considered a "harassing investigation of jurors." It is especially harassing when the jurors have not posed any particular problem or issue leading the prosecution to believe they will risk the trial process.

According to the Boston Globe, Bulger's opposition states in their six-page memo that the information from criminal background checks are "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 prosecutors may be traumatized by a prior mistrial of Gary Lee Sampson. They fear that this case will be overturned later for jury misconduct much like in Sampson's case. In that case, the court affirmed an order vacating a death sentence. The judge found out later that one juror was concealing family drug abuse history during voir dire.

The prosecutors in Bulger's case argue that it will help minimize the risk of a mistrial by finding out if jurors are lying to them. They used a prior First Circuit case, U.S. v. McIntosh to support their argument in favor of jury background checks.

However, there are differences between these cases. Bulger's attorneys oppose the background checks as being intrusive and disruptive since it would be out in the open in his case. In McIntosh, the background check was done without anyone, not even the juror, knowing about it. Additionally, the McIntosh case allowed the background check during jury deliberations, not before trial.

It is understandable why the prosecutors are fearful of a mistrial in this high profile case. However, it is hard to believe that a criminal background check will really do much to prevent juror misconduct. The criminal history of a person can only tell a small portion of that person's story. Perhaps the prosecutors are just being extra cautious. This could be just one preventative measure that in hindsight would be regrettable if not taken.

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