Of the 1.4 million adults who live in Manhattan, a dozen are soon to become the first Americans to sit in judgment of a former president charged with a crime.
Jury selection is set to start Monday in former President Donald Trump’s hush money case — the first trial among four criminal prosecutions of the presumptive Republican presidential nominee. The proceedings present a historic challenge for the court, the lawyers and the everyday citizens who find themselves in the jury pool.
“There is no question that picking a jury in a case involving someone as familiar to everyone as former President Trump poses unique problems,” one of the trial prosecutors, Joshua Steinglass, said during a hearing.
Those problems include finding people who can be impartial about one of the most polarizing figures in American life and detecting any bias among prospective jurors without invading the privacy of the ballot box.
There’s also the risk that people may try to game their way onto the jury to serve a personal agenda. Or they may be reluctant to decide a case against a politician who has used his social media megaphone to tear into court decisions that go against him and has tens of millions of fervent supporters.
Still, if jury selection will be tricky, it’s not impossible, says John Jay College of Criminal Justice psychology professor Margaret Bull Kovera.
“There are people who will look at the law, look at the evidence that’s shown and make a decision,” says Kovera, whose research includes the psychology of juries. “And the job of the judge and the attorneys right now is to figure out who those people are.”
Trump has pleaded not guilty to fudging his company’s books as part of an effort to conceal payments made to hide claims of extramarital sex during his 2016 campaign. He denies the encounters and contends the case is a legally bogus, politically engineered effort to sabotage his current run.
He will go on trial in a criminal court system where juries have decided cases against a roster of famous names, including mob boss John Gotti, disgraced film mogul Harvey Weinstein and Trump’s own company.
Over the last year, writer E. Jean Carroll’s sex assault and defamation civil suits against Trump went before juries in a nearby federal courthouse. New York state’s fraud lawsuit against the ex-president and his company went to trial without a jury last fall in a state court next door.
A game-changing trial
But the hush-money case, which carries the possibility of up to four years in prison if he’s convicted, raises the stakes.
Trump lived for decades in Manhattan, where he first made his name as a swaggering real estate developer with a flair for publicity. As Steinglass put it, “There is no chance that we’re going to find a single juror that doesn’t have a view” of Trump.
But the question isn’t whether a prospective juror does or doesn’t like Trump or anyone else in the case, Judge Juan M. Merchan wrote in a filing Monday. Rather, he said, it’s whether the person can “set aside any personal feelings or biases and render a decision that is based on the evidence and the law.”
The process of choosing a jury begins when Merchan fills his New Deal-era courtroom with prospective jurors, giving them a brief description of the case and other basics. Then the judge will excuse any people who indicate by a show of hands that they can’t serve or can’t be fair and impartial, he wrote.
Those who remain will be called in groups into the jury box — by number, as their names won’t be made public — to answer 42 questions, some with multiple parts.
Some are standard inquiries about prospective jurors’ backgrounds. But the two sides have vigorously debated what, if anything, prospective jurors should be asked about their political activities and opinions.
Merchan emphasized that he won’t let the lawyers ask about jurors’ voting choices, political contributions or party registration.
But the approved questionnaire asks, for example, whether someone has “political, moral, intellectual or religious beliefs or opinions” that might “slant your approach to this case.” Other queries probe whether prospective jurors support any of a half-dozen far-right or far-left groups, have attended Trump or anti-Trump rallies, or have worked or volunteered for Trump, his administration, his campaign or any political entity affiliated with him, or have worked or volunteered for any “anti-Trump group or organization.”
In a filing Friday, Trump’s lawyers complained that the “political entity” question amounts to inquiring about whether someone affiliates with the Republican Party, without a similarly direct question about affiliations with “rival political parties that are not necessarily anti-Trump” but still might prejudice a potential juror.
Potential jurors also will be quizzed about any “strong opinions or firmly held beliefs” about Trump or his candidacy that would cloud their ability to be fair, any feelings about how Trump is being treated in the case and any “strong opinions” on whether ex-presidents can be charged in state courts.
A battle of wits
The process of choosing 12 jurors and six alternates can be chesslike, as the opposing sides try to game out whom they want and whom their adversaries want. They must also weigh which prospective jurors they can challenge as unable to serve or be impartial and when it’s worth using one of their limited chances to rule someone out without giving a reason.
“A lot of times you make assumptions, and arguably stereotypes, about people that aren’t true, so it’s important to listen to what they say” in court and, if possible, online, says Thaddeus Hoffmeister, a University of Dayton law professor who studies juries.
In prominent cases, courts and attorneys watch out for “stealth jurors,” people trying to be chosen because they want to steer the verdict, profit off the experience or have other private motives.
Conversely, some people might want to avoid the attention that comes with a case against a famous person. To try to address that, Merchan decided to shield the jurors’ names from everyone except prosecutors, Trump and their respective legal teams.
The six jurors and three alternates in each of Carroll’s federal civil cases against Trump were driven to and from court through an underground garage, and their names were withheld from the public, Carroll, Trump, their attorneys and even the judge.
Carroll’s lawyer, Roberta Kaplan, says that if she were involved in the hush-money case, she would ask the court to do everything possible to ensure that jurors stay anonymous and don’t fear being singled out online or in the media.
“The main concern, given the world we live in, has to be the potential for juror intimidation,” Kaplan said.
Jurors were chosen within hours for both trials of Carroll’s claims, which Trump denies. Carroll’s lawyers later tried midtrial to boot a juror who had mentioned listening to a conservative podcaster who criticized Carroll’s case. The judge privately queried the juror, who insisted he could be fair and impartial.
He remained on the panel, which unanimously found Trump liable for sexual abuse and defamation and awarded Carroll $5 million. Eight months later, the second jury awarded Carroll an additional $83.5 million for defamation.
