In a victory for prosecutors, the federal judge presiding over the upcoming criminal trial of James “Whitey” Bulger granted a government request Friday to conduct criminal background checks on potential jurors.
US District Court Judge Denise J. Casper rejected an argument from Bulger’s lawyers, who opposed the checks in part because there is no federal law requiring such a review.
“The fact, however, that there is no federal law mandating such record checks or established practice of doing so in the ordinary course does not mean that it is not prudent to do so in this case,” Casper wrote.
Neither J.W. Carney Jr., one of Bulger’s lawyers, nor a spokeswoman for US Attorney Carmen M. Ortiz would comment on the ruling.
Casper noted that the trial is expected to last several months and will require “substantial time and effort” from attorneys and jurors alike.
“Although, as the defendant contends, it is true that much of the jury selection process relies upon the candor and honesty of potential jurors sworn, under pains and penalties of perjury, to answer the questions the court puts to them truthfully, that reality does not weigh heavily against allowing verification of this matter, particularly against the backdrop of relatively recent experience in this Commonwealth,” Casper wrote.
She mentioned a state case in 2004 in which a judge dismissed three deliberating jurors who failed to disclose their criminal histories. She also pointed to a federal case in Boston in which a judge in 2011 set aside a jury’s verdict recommending the death penalty for a convicted carjacker because a juror failed to disclose relevant personal information during jury selection.
Casper did impose conditions on the background checks.
She wrote that the government may only conduct reviews of potential jurors who make it past the initial questionnaire and that authorities must share, under seal, the results with defense lawyers.
Casper also mandated that all lawyers involved in the case maintain the confidentiality of the results of the background checks.
John Cunha, a past president of the Massachusetts Association of Criminal Defense Lawyers, criticized the ruling. He said he feared that subjecting jurors to criminal background checks could impede their ability to independently weigh the evidence.
“They’re not suspects,” said Cunha, who last year won an acquittal for a defendant in a high-profile quadruple murder case in state court. “If you treat them like suspects, their natural tendency is for them to want to please the government.”
Separately on Friday, Casper also denied a request from Bulger’s lawyers to be given the identity of a confidential informant who gave the FBI information about former Bulger associates Kevin Weeks and John Martorano. The pair are expected to testify against Bulger.
She did, however, approve Bulger’s request to obtain the identity of a former girlfriend of Weeks.
Defense lawyers said in a recent filing that the informant had indicated to authorities that the girlfriend passed messages from Weeks to other people.
Bulger, 83, is charged in a sweeping racketeering indictment that alleges he participated in 19 murders.
He is slated to stand trial in federal court in Boston in June.