The Boston Criminal Lawyer Blog is often complaining that Constitutional rights and criminal justice incidentals like the presumption of innocence are often ignored once a person is accused of a crime. I stand by those complaints, but I often add the proviso that this tends to change somewhat when the matter goes to trial.

This is where these rights get taken a bit more seriously. Particularly after the trial if it appears something serious went wrong.

The case of Gary Lee Sampson (hereinafter, the “Defendant”) has hit the media again. The Defendant was accused, and convicted, of the murder of three people in Massachusetts and New Hampshire during a bloody killing spree.

After the jury found the Defendant guilty, it sentenced him to death. While the Death Penalty does not presently exist in Massachusetts state law, it still is very much alive in the federal justice system..

Before our government could kill the Defendant, however, a little bug in the criminal justice ointment came to light. There existed a real question as to whether the Defendant had received a fair trial.

After a hearing, Boston United States District Court Judge Mark L. Wolf found that a female juror, whom His Honor would only identify as “C”, “persistently committed perjury” when she did not disclose during jury selection that she had been a victim of domestic abuse. Had she simply been honest, Wolf said, “She would have been excused for cause.”

Today’s order affirms a decision Wolf made in October, and potentially lines Sampson up to be retried, but only to determine if he will be executed or condemned to a life behind bars.

“A second hearing to determine whether Sampson should live or die will be lengthy, expensive, and anguishing for the families of Sampson’s victims,” Wolf said. “It is, therefore, appropriate to give the First Circuit the opportunity to decide whether the decision that a second sentencing hearing is legally required is now appealable.”, Wolf wrote.

In other words, the prosecution could appeal the judge’s decision.

Christina DiIorio-Sterling, spokeswoman for the U.S. Attorney’s Office, declined comment. Federal prosecutors now have 10 days to decide whether they will appeal Wolf’s ruling before the First Circuit Court of Appeals, which they indicated last fall they would. Wolf’s ruling is stayed until appellate justices resolve the matter on their end.

Attorney Sam’s Take On Juries And Prejudice

When using the term “prejudice” in this case, we are not talking about racism or sexism. We are talking quite literally about pre-judgment. A jury in any case is supposed to be impartial from the start and free from pre-judgments which they might bring into their deliberations.

“Sam, is that possible? I mean, you are the one who is always talking about everyone in the justice system merely being human.”

Yes I am and, frankly, not it isn’t. It would be impossible to live on this planet without pre-judgments. Pre-judgments mean we learn from experiences. However, when trying to choose an impartial jury, we try to steer clear from certain pre-judgments which are likely to be triggered and influence decisions unfairly.

Jurors are not asked to leave their general life experiences and common sense outside the jury room. They are asked to use them when considering the evidence and law.

“So jurors are supposed to forget about all judgments, yet rely on their life-experiences?”

Sort of. Again, not all pre-judgments. For example, let’s say that Slippery Susan has brought a civil lawsuit against Walmart. She claims that Walmart’s floor was poorly kept up and had some spilled water on it. She says she slipped on that water and is now bringing a “slip and fall” personal injury action against Walmart for their negligence. At the start of the trial, Vincent Victim is a potential juror and he had once been pick pocketed. Most likely, the fact that he was once stolen from will not come into play during the case. So, if the judge asks if jurors they have ever been victims of a crime, Vincent should obviously raise his hand. Upon learning about his misfortune, the judge is unlikely to remove him from the panel for “cause”.

Being removed from a jury panel for “cause” means that one is excused because there is too large a chance that whatever issue has just been raised by the potential juror could interfere with that juror being fair and impartial.

However, let’s say the trial is for Peter Pockets who is on trial for shoplifting. Now, there may be an issue as to whether or not there is the same risk. In such a case, the judge may well excuse the Vincent from the jury panel.

In this case, Judge Wolf has indicated that had “C” answered truthfully when the jury panel was questioned in the beginning of the trial, he would have likely excused that juror for cause. He would have, at least inquired into the issue.

“Sam, you often say that what decides trials is the jurors’ perception of the evidence and law.”


“So, what does the issue of whether a juror has been the victim of a crime have to do with their perception?”

Let’s get more into that in my next posting.

To read the article upon which this blog was based, please go to

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