06/07/2013 08:02 am ET

'Whitey' Bulger Jury Selection Gives Prosecutors An Early Advantage


The courtroom battle over James "Whitey" Bulger's fate has begun even before the first witness is called and before lawyers present opening statements.

The fight now is over who should sit as jurors on the months-long federal trial in Boston. According to trial consultants and lawyers who spoke with The Huffington Post, the defense is at a clear disadvantage in this round.

Bulger, who faces 19 murder counts, spent decades attracting press coverage, first for his alleged ruthless control of the Boston underworld and scandalous connections with the FBI from the 1970s through early 1990s, then as one of the FBI's most wanted fugitives.

"You'd have to be living under a rock somewhere to not know about this. You'd have to be oblivious," said Philip Anthony, chief executive officer of the trial consulting firm DecisionQuest.

"You're likely to have a large number of people who are familiar with some of the events, so that would create a bias in favor of the prosecution," Anthony added.

The prosecution and defense on Friday are sifting through detailed questionnaires filled out by the pool of 858 men and women in order to come up with the 12 jurors and six alternates who will decide the 83-year-old defendant's fate.

Jury consultant Edward Schwartz of TrialGraphix suggested that the defense team would try to block potential jurors with backgrounds similar to those of the witnesses expected to testify about murdered family members. Many of the alleged victims came from working- or middle-class Irish-American families.

"It would be a good idea to get people who moved into the Boston area relatively recently so they have no memory of [Bulger's] reign of terror, so to speak. My goal would be to get someone who's never set foot in Southie," Schwartz said, referring to South Boston, the Irish enclave where Bulger grew up. "If they see some middle-aged woman with white hair and a thick Boston accent, there's no immediate emotional connection."

Potential jurors' personal experiences and attitudes, however, outweigh the importance of demographic details like age, gender, race and income.

The 13-page jury questionnaire seeks to uncover telling signs. While it includes standard questions about whether jurors and their families have been the victims of crime or work in law enforcement, customized queries ask for their opinions about organized crime and drug laws.

Prosecutors will scrutinize the completed forms looking for people with a strong preference for law and order or a belief that society is too dangerous, according to Anthony. "The prosecution wants someone who's sort of afraid of their own shadow," he said. "They always think they're going to be a victim of something, that people like Whitey are the people who make them unsafe."

Bulger, who denies that he worked as an FBI informant yet claims that a federal prosecutor granted him immunity, would benefit from jurors who don't hold members of law enforcement in high regard, trial experts said.

The tight schedule laid out by U.S. District Judge Denise Casper to seat the jury has already been changed, WCVB reported. Jury selection began Monday, June 3, and was scheduled to wrap up on Friday, June 7, but will now extend into early next week.

Casper also granted an uncommon request by the prosecution to conduct criminal background checks of potential jurors.

The jurors will not be sequestered, but their identities will be shielded until they reach a verdict.

The bright spotlight shining on this case adds another burden: Jurors will feel intense pressure to reach a verdict that will be accepted by friends, neighbors and coworkers.

"When you're dealing with the question of organized crime that hangs over this case, you need to weed out jurors who might be afraid," said Ben Brafman, a New York defense attorney who has represented mafia figures. "You need people who have the courage to acquit if it's appropriate under the facts even if it's not popular."



Whitey Bulger