How Will Jury Selection Work for Donald Trump?

Welcome back to The Collision. This week, we’re keeping it a Spring Break length and will focus on what looks to be the first of former President Donald Trump’s criminal trials. 

The Docket

• A New York appeals court has made life much easier for Donald Trump. While the $464 million judgment against him in his civil fraud case in the state still stands, the appellate court ruled that he would only need to put up $175 million in the next 10 days to appeal the judgment against him and prevent New York Attorney General Letitia James from potentially seizing his New York properties. Assuming Trump comes up with the money, the appeal will not be heard until the fall. 
• Something strange is going on in the federal classified documents case against Trump in Florida. Judge Aileen Cannon has yet to rule on several pending motions or set a trial date. In the meantime, legal writer David Lat has now reported that two of her clerks have quit in the past year. On a message board, a former clerk wrote that Cannon “treats clerks (and the entire chambers staff) very poorly and tends to get angry to the point of screaming at them and talking to them in condescending ways.” 
• The New York criminal trial against Trump related to his hush money payments to Stormy Daniels is now set to start on April 15. Judge Juan Merchan issued a gag order this week that will bar Trump from making public statements about “potential witnesses in the case, prospective jurors, court staff, lawyers in the district attorney’s office and the relatives of any counsel or court staffer.” The gag order does not cover Manhattan District Attorney Alvin Bragg or the judge. 

Selecting the Jury That Will Judge Donald Trump

The first of Donald Trump’s criminal trials is set to begin April 15 in New York. The prosecution will try to prove that Trump falsely recorded hush money payments to porn star Stormy Daniels for the purpose of concealing another crime. But before attorneys make opening statements or call any witnesses to the stand, they will need to pick a jury. 

If you’ve ever seen the movie 12 Angry Men, you’ve already got the basics. Twelve residents of Manhattan will be selected from lists of registered voters, holders of driver’s licenses or IDs issued by the Division of Motor Vehicles, New York state income tax filers, recipients of unemployment insurance or family assistance. Then they will be asked to determine whether the prosecution presented enough evidence to prove that Trump violated the law beyond a reasonable doubt. 

But how in the world are they going to find 12 people to do this without prejudice—for or against—for one of the most well-known and polarizing people in the world? 

It’s worth looking back at the jury selection process for other high-profile cases. Given Trump’s ubiquitous fame, the most relevant example may be the 2015 trial of Boston Marathon bomber Dzhokhar Tsarnaev. Everyone in Boston, where the trial was held, knew about the bombing and had been affected by the manhunt that shut down the city just two years earlier. Voir dire, the process for selecting jurors, took two months in that case. Of the 12 jurors and six alternates chosen, at least four had said that they believed the defendant was guilty. But, and this is important, they were selected anyway because they also said that they could put their beliefs aside and come to a verdict based only on the evidence at trial. 

Tsarnaev was convicted and sentenced to death by the jury. The case continues, however. Just this week an appeals court instructed the trial judge to go back and investigate whether two of the jurors were biased and had lied during the jury selection process. 

Jury selection in the famous 1994 murder trial of O.J. Simpson also took two months. To find 12 jurors, attorneys started with 250 people who were asked to fill out a 79-page, 294-question questionnaire. In that case, each side was able to ask the judge to exclude jurors “for cause” who had either prejudged the case (as you are seeing, having opinions about a case or the defendant is not the same as prejudging the outcome of the case) or for whom there was reason to believe they could not be impartial. The prosecution and defense were also able to exclude a certain number of jurors with “peremptory” challenges, meaning that they simply did not want that person on the jury. A peremptory challenge can be used for arbitrary reasons—the potential juror glares at the defendant, was a victim of a similar crime, or even wears expensive jewelry. But it cannot be used to exclude someone based on their race, religion, nationality, or other protected classes. 

The jury selection process in Martha Stewart’s 2004 criminal trial lasted for weeks and included questionnaires and in-person interviews by the judge and both sides. Some of the reasons potential jurors were excused during that voir dire process could be helpful in understanding how the process will work for Trump. One man told the judge during questioning that “his wife had worked for Martha Stewart Living Omnimedia Inc. and had been ‘unfairly fired due to a maternity leave problem.’” Although the juror said he could put aside that experience and judge the case based on the evidence, the judge accepted the “for cause” challenge by Stewart’s lawyer. Another potential juror was excluded after she told the judge she considered one of the government witnesses “sort of a mentor.” 

Given the huge amount of media attention the case attracted, the government was concerned reporters would try to interview prospective jurors. The judge excluded the media from being in the courtroom during the jury selection process and instead released transcripts of the proceedings later because a summary of the juror questionnaire appeared on Gawker.com. Kicking reporters out of the courtroom during juror questioning would “ensure juror candor and thereby protect the ‘parties’ right to a fair trial,’” a judge wrote. After the order, 17 news organizations sued, arguing that the order violated the First Amendment. A month later, an appellate court agreed—but since the trial had ended, there was no practical effect for Stewart. Still, the ruling has applied to criminal trials since. 

A trial the next year proves another insightful example. In 2005, Michael Jackson went on trial for child molestation. The process to winnow down the 250 potential jurors lasted for weeks—and was postponed for weeks during the process when a lawyer’s family member died and when Jackson had the flu. On the seven-page questionnaire, court watchers noted “an unusually large number of potential jurors said they would be willing to give up work and other commitments to hear a trial that could last up to six months.” Jackson was acquitted on all charges after a four-month trial.

Some lawyers will tell you that a case can be won or lost during jury selection. But Trump’s New York trial may be the most scrutinized jury selection process in American history. So buckle up. How many potential jurors will be convened? How long will the jury questionnaire be? What types of questions will the judge ask potential jurors to determine whether they can set aside their political views and judge the case based on the evidence? How many challenges will each side get? What type of jurors will Trump be trying to exclude? How many alternates will be chosen in case any of the 12 jurors have to be excused? How will the judge handle media attention around the jury selection process and potential jurors?

The answer to each of these questions will be analyzed and debated for decades.