Jurors and alternates assigned to the trial of notorious gangster James “Whitey” Bulger will wrestle with countless questions during a case expected to drag on through September, including one that has nothing to do with guilt or innocence: Can I afford to be here another day?
Jurors in federal cases are paid just $40 per day for their service, a per diem that has not increased since 1990. They are reimbursed for travel expenses and cannot be fired from their jobs, but their employers are not required to pay anything.
During a long trial like Bulger’s, jury duty can mean the loss of thousands of dollars in income, and poorly compensated jurors may not be the only ones who suffer. Some legal analysts worry that low jury pay endangers a defendant’s ability to get a fair trial.
“The threat to justice is the following: In theory, you’re entitled to a jury that represents a cross section of the whole community,” said Arthur H. Patterson, senior vice president at trial consulting firm DecisionQuest in State College, Pa. “If poor, working people are unable to serve, you might be missing that blue-collar worker who understands your perspective.”
Personal information about the Bulger trial jurors, including the economic makeup of the panel, has been sealed by the court.
Companies that employ jurors in federal cases receive calls and letters from court officials encouraging them to pay the difference between workers’ regular salaries and the $40 daily stipends. Many oblige. Sixty-three percent of American workers have benefit plans that include pay while on jury duty, according to the Bureau of Labor Statistics.
But such benefits are more commonly enjoyed by those at the high end of the income scale. Among workers in the top quarter of all earners, 83 percent are paid by their employers during jury service. Just 34 percent of workers in the bottom quarter — those who are least able to forfeit income — enjoy the same protection.
Concerns about inadequate jury pay also exist in state courts across the country, where compensation varies widely but generally ranges from paltry to virtually nonexistent. Standard per diems top out at $50 in states like Connecticut, Colorado, and Arkansas. Some counties in Texas pay as little as $6 per day. In Illinois, the minimum is $4.
The Massachusetts court system ranks among the most generous, mandating that jurors’ employers pay full salaries for the first three days of service before the courts mete out a $50 per diem, beginning on the fourth day of a trial. According to the Office of the Jury Commissioner, 96 percent of state court jurors serve three days or less , and therefore lose no pay.
“Very few people are actually suffering some financial hardship against their will,” said Jury Commissioner Pamela J. Wood. “I’ve literally had no calls to increase the pay.”
Wood said judges typically can anticipate when a trial will last more than three days and often will excuse potential jurors for whom a lengthy commitment would mean a crippling financial blow.
On the off chance that a trial does continue for more than three days, nearly two-thirds of Bay State businesses will voluntarily extend full-pay benefits to an employee on the jury, according to a survey by Associated Industries of Massachusetts. But for some companies, especially small ones, paying an absent worker is untenable.
“The bottom line is that when an employee is out for any reason, it can be disruptive for a small business,” said Andre Mayer, a spokesman for the association. “In our own office [of about 30 workers], the assistant to the executive director was on jury duty for a couple of weeks. I know we felt it.”
Jury candidates for the Bulger trial were told by US District Judge Denise J. Casper that personal finances would be given little consideration, recalled Marcia Pereira, who was in the original pool but not selected.
Pereira, a 50-year-old property manager from Medway, said her petition to be excused from service because of financial hardship was rejected by the court.
“It was very scary,” Pereira said. “I work full time. I have kids. I have a mortgage.”
Pereira said her company’s policy is to compensate employees for as many as 10 days of jury duty — far more than the legal requirement — but she wondered how she would have paid the bills during the remainder of a monthslong trial. After 10 days, federal jurors are eligible for additional compensation by the court, but the extra pay — $10 per day — is not likely to make a big difference.
Even someone empaneled on an average-length federal trial of five to seven days can take a hit. A worker who earns the national median wage could lose $573 in one business week by serving in a federal case.
Courts in many jurisdictions could learn from Arizona and Oklahoma, which have established lengthy-trial funds that help jurors in state cases recover lost wages, said Sherman Joyce, president of the American Tort Reform Association in Washington.
In Arizona, for instance, the standard per diem is just $12, but after three days on a panel jurors can receive as much as $300 per day to compensate for what they would ordinarily earn.
Higher jury pay reduces hardship claims and eliminates a common reason why low-wage workers are dismissed — important developments, Joyce said, because “the system works best when we have people from all backgrounds serving on juries.”
William Zervakos, the jury foreman on the Jodi Arias murder trial in Phoenix this year, said his employer paid his salary throughout the case. But he noted that some of his colleagues depended on Arizona’s lengthy-trial fund to help make ends meet during five months in court.
Zervakos, 69, expressed sympathy for Bulger jurors, who appear destined for similarly drawn-out proceedings without the same insurance.
“I don’t know how people will do it, to tell you the truth,” he said.
“I know I wouldn’t have been able to do it.”