In Florida, Georgia, New York, and Washington DC, Donald Trump is facing the looming prospect of jury trials. While the word is overused these days, it is truly unprecedented for a once and maybe-future President to be facing federal and state charges. With trials for co-conspirators starting as early as next month, and Trump’s own trials now slated to start in the midst of the Spring campaign season, the question of how we will ever find “twelve people good-and-true” to be the neutral fact finders in these cases is a question that judges will be dealing with quite soon. To say that the jury selections will be challenging is an understatement. My colleague Richard Gabriel, who selected juries for OJ Simpson, Casey Anthony, and many other high profile defendants, has a recent piece in Law 360 outlining many of the challenges, including the politicization of the charges and the pretrial vetting of evidence in the public square. It must also be said that we have a defendant who, in the view of the special counsel at least, seeks to prejudice the jury pool through near-daily inflammatory statements about prosecutors and witnesses, as well as the process and the judge herself.
In this context, some despair at even the possibility of coming up with a fair jury. I think a better response is not to give up on the system, but instead to make every effort to adapt to these extraordinary circumstances. Desperate times call for desperate measures, and I believe that any court seeking to set conditions for a successful jury selection should bring in independent experts (not working for either party) to advise the court on how to set up a process that can be both effective and fair. It is going to require careful study, and probably a broad conversation, but in this post I will share a few thoughts that apply not only to the Trump cases, but to any case with substantial public involvement and pretrial publicity.
A ‘Business as Usual’ Approach Would Be a Disaster
While I haven’t seen it yet, I do fear that the moment could be met with some judicial swagger in saying, “This is a case like any other, we’ll treat this defendant like any other, and we’ll follow the time-honored procedures of this court!” That might feel satisfying to say, but ignoring the unique challenges in these jury selections will not work. In most courts, routine jury selection means relying on just a thin slice of information expressed in court by potential jurors. It means trusting a self-diagnosis of bias by those jurors that the social science very clearly shows is not reliable. It means employing the magic wand question “Can you be fair?” to cure all manner of hardened attitudes and important experiences in the pool. In short, those conventional methods are a recipe for having committed and potential “stealth” jurors from both ends of the political spectrum, and could serve as a greased slide toward a mistrial.
What Is Needed: Conscious Adaptations
Successful selections in the Trump cases, as in other very high profile cases, will require judges to have an open mind and to consider a number of steps that go beyond the norm. Here are a few.
Obviously, the venire being called for these cases should be huge: Hundreds or even thousands of jury-qualified individuals. There should be enough that plenty remain even after the court is generous on hardships, on cause challenges, and even on simple discomfort with the case. There should be enough that “busting” the jury pool should be literally the last concern.
Jurors will be uniquely vulnerable in these case. We know this since grand jurors in the Georgia case have already been doxed and threatened. It should go without saying that citizens should be able to do their duty and complete their service without exposing themselves or their families to threats and ridicule. Courts should consider tough measures to shield jurors and potential jurors from any unwanted publicity in these cases, up to and including protecting their names and other identifying information.
While the jurors should be able to count on privacy, there is a parallel need for the court and the parties to be able to count on honesty. Members of the venire should clearly understand that statements made in court and on questionnaires are made under oath, and knowingly false statements carry a penalty of perjury, a potential penalty that should not be waived or taken lightly in cases like this. To identify the potential stealth juror, the parties will also need to make use of public records and social media that would identify potential jurors who are being less than fully candid.
Clearly the parties need to use every tool to discover what potential jurors actually know or believe about the cases and related issues. A professionally crafted questionnaire should be designed to get at the attitudes that matter. That should be followed by extended voir dire conducted individually and by counsel that permits sufficient time to assess and explore each person’s relevant views and ability to follow the law and the evidence.
A Low Standard for Cause
Perhaps the most essential step is for the courts to dispense with the fiction that “If they say they can be fair, then they can be fair.” Social science research shows that a.) people aren’t fully aware of their degree of bias; and b.) aren’t able to control that bias, or accurately assess their ability to control it. Instead of curing issues by asking for fairness, the court’s standard should instead factor in the likelihood of bias and the appearance of bias, applying a standard of reasonability. If a party has a clear basis to believe the person would have difficulty being fair, that shouldn’t be simply cured by a promise from the individual. The standard should be spelled out specifically by the court so that parties and bench are guided by the statements made and not by “feel” on a juror-by-juror basis.
Both parties as well as the court need a clear view of what they are after in each case. In other words, they should know the target for what would be disqualifying or what would be relevant to a potential strike.
Here’s what I think wouldn’t be disqualifying:
- Knowledge alone shouldn’t be disqualifying: Anyone who doesn’t know about the former President’s legal trouble has been living in a cave (without a phone).
- Political views alone shouldn’t be disqualifying: It is possible to support or oppose a politician and to still be guided by the facts and law of a criminal case.
So what would be disqualifying?
- Pre-judgment. Anyone who apparently or admittedly has already reached a decision on this specific case shouldn’t serve.
- Social pressure. Anyone who would have difficulty living with a decision either way, and having their family and friends know their decision shouldn’t serve. Given how polarized social networks and entire towns have become, this one is a big deal.
- Discomfort. It is foreseeable that many, perhaps most, wouldn’t relish this service – both due to the possible exposure and, perhaps, because they know their own attitudes. Yes, being available is a duty, but no one should be required to serve if they’re clearly uncomfortable with the case.
- Distrust of the process. Given that, despite the indictments, the defendant is still the overwhelming choice of one of America’s major parties, many have already judged the process itself as illegitimate. Those who cannot trust the judge, the laws, or the system shouldn’t serve.
Of course, there are a lot of disqualifiers. Many, perhaps a majority in any of the venues, wouldn’t be qualified to serve based on one or more of these qualities. But with sufficient numbers and sufficient time, it should be possible for the system to work. It is a tall order, but with the right adaptations, a fair jury in these cases should be attainable.
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