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The Voodoo Of Picking A Jury

One thing that most trial lawyers agree upon is that jurors are a remarkable bunch. The seriousness with which they do the job of following the evidence and finding facts fairly is enough to restore your faith in humanity. Most of the time. But can a Manhattan jury, with Donald Trump as defendant, put aside bias? Jury consultant Julie Blackman says that a fair jury can be picked in New York County, even when Trump is the defendant.

For Mr. Trump, we’re about to find out.

In the ordinary scheme of jury selection, there is a natural bias against the defendant. After all, they’ve been charged with committing a crime, been indicted by a grand jury, moved for dismissal and are still on trial. If there wasn’t evidence of guilt, why would all these people be in the courtroom? And yet, there they are, searching for the evidence that puts the case over the edge of presumed innocent to guilty beyond a reasonable doubt.

For all of the media attention that has focused on this case and the others Mr. Trump has faced and is facing, in my experience, well-instructed juries have shown time and again that they can put aside what they have learned outside the courtroom and focus on the evidence presented inside the courtroom. What is likely to unfold in the trial will undoubtedly absorb the jurors’ full attention. Having sworn to the court that they will shelve their preconceptions, the jurors are likely to focus on the evidence and follow it to where it leads. Our brains tend to focus on what’s in front of us, and the evidence in this case surely will be compelling for the jurors.

As a general rule, sure, but the issue raised isn’t whether juries in general are serious or fair. The issue here is whether this defendant, this one who has done as much as any human being can to bias the jury pool against him by his incessant attacks and rants, has created the pretrial publicity about which his lawyers grieve have poisoned the waters.

That said, Mr. Trump might prove to be his greatest enemy. Several studies have raised concerns about jurors turning to the internet for case-relevant information while serving on juries, even though they had been instructed not to consider outside information. This might present a challenge for Mr. Trump if he continues to salt the internet with invective. Even so, a carefully instructed jury should be able to sideline his vitriol in favor of the evidence.

Not every potential juror spends her life online obsessing over Trump. Some work for a living. Others just don’t care all that much. Others still here bits here and there that leave them unsure who is the bad guy. For those who weren’t too online before, they’re unlikely to become too online now. But still, they’re going to know who Trump is and have a sense about whether he’s someone they would invite to dinner.

Jurors who will sit in judgment of Mr. Trump will have survived what is likely to be a lengthy selection process intended to root out potential bias. They will fill out detailed questionnaires and may be questioned in court by the judge and the lawyers for both sides to elaborate on their written responses. Jurors who cannot be fair will be dismissed by the judge. Days or even weeks could pass before enough jurors are deemed impartial and selected. Additionally, the defense and prosecution each will be able to reject 10 more potential jurors for any reasons except for a juror’s race or gender or other similar identifying characteristic.

This is where the aspirational claims start to fall apart. Some potential jurors will leave no doubt they can’t be fair. Often, this has more to do with their not wanting to be on the jury. Sometimes, it’s just a potential juror’s way of getting his say about Trump. But the obviously biased jurors aren’t the problem. It’s the one who swear they will be fair, with doe eyes and a solemn expression, that raise concerns. Sure, the judge can dismiss jurors for cause, but who knows what bias lurks in the hearts of jurors?

There will be questions, like which news programs they favor, MSNBC or Fox, or god forbid, Newsmax. Do they read the Times or the Post? Are they a philosophy prof at Barnard or a public school gym teacher? Presumably, we know what each of these things mean based on gross stereotypes, but we don’t really know what they’re thinking.

What about the people who lie in response to questions, the “stealth jurors” who want on the case? What about the people who tell the truth, but whose answers reflect the person they want to believe they are rather than the person they really are? These aren’t people who will be dismissed for cause. The judge will ask whether they can be fair, and they will respond in a stentorian voice that they can. The judge will ask whether they will follow his instructions, and they will respond they will. And they mean it with the best of intentions, knowing full well that Trump is one of the most evil people alive.

Of course, Mr. Trump doesn’t want a fair trial. Like any other criminal defendant, he wants a jury that is biased in his favor. But can he get a jury that is able and willing to give him a fair shake?

Every defendant wishes for a jury that is biased in his favor. That doesn’t happen too often in real life. The best we can hope for is a jury that isn’t too biased against the defendant, and we make our best guesses about which of the people who proclaim they can be fair will give the defendant a fair shake. Will we be right? We’ll never really know. Contrary to the financial interests of those who pick juries for a living, it’s just voodoo tied up in a bow of rationalizations.

The parties get ten peremptory challenges of those potential jurors who are not dismissed for cause. The trick here is to get the other side to use up their strikes before you do, so they can’t challenge that juror you feel in your gut doesn’t hate the defendant as much as the rest of the panel. Can Trump get a fair jury? Sure. Will he? Who knows.

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