Lawyers pickling Trump jury to look for bias

Judge: Party ID along isn't enough to dismiss

By: Aysha Bagchi
USA Today

..... Jury selection may seem like the boring precursor to a trial;s juicier parts, but it can be crucial to the outcome. Starting Monday, [04/15/2024] the teams of lawyers in former President Donald Trump's criminal hush money trial were expected to try to select 12 jurors - and several alternates - who gave them the best chance of winning.
.... The process often involves weeding out jurors with opinions that might influence their decision. But how can you find anyone in Manhattan who doesn't have an opinion of Trump?
..... To find out, USA Today talked to jury and trial experts, who said that Trump's and Manhattan District Attorney Alvin Brag's trial teams may want to ferret out anyone who has an anti-Trump agenda - Trump because those are likely votes to convict, and Bragg to protect a guilty verdict on appeal. Trump may also look for lone wolves and people who district the justice system, knowing that even a hung jury could shield him from the case for years if he wins the November election.
..... It's a case that could bend the norms for criminal defendants, according to Jo-Ellan Dimitrius, a jury consultant who has worked on many high-profile trials, including the O.J. Simpson murder trial.
..... "In a normal criminal case, it is the prosecution that's looking for the white, older male, and it is the defense that's looking for the minority individual, the anti-police individual - but in this case it's actually reversed,' she said.
..... Trump faces 34 felony counts of falsifying business records in order to unlawfully influence the 2016 presidential election, and jury selection will be the first portion of the trial. New York requires a unanimous verdict form the 12 jurors to convict.
..... The business records at issue characterized payments form trump to his former lawyer, Michael Cohen, as compensation for legal services. In reality, they were reimbursements for a $130,000 hush money payment to keep adult film star Stormy Daniels form hurting Trump's 2016 election chances by going public about having had sex with Trump, according to prosecutors. They say the payment was a campaign contribution that exceeded federal limits.
..... Trump has pleaded not guilty in the case, and has also denied Daniels' claim.
..... The jury selection process could last several days or even multiple weeks. Both trial teams will get a limited number of "peremptory strikes" they can sue - essentially vetoes they can exercise to exclude prospective jurors. However, when those run out, the prosecution or defense will be struck with whichever potential juror comes up next unless Judge Juan Merchan strikes the person "for cause." That means the judge has concluded the person doesn't meet New York juror based on responses to questions, but Merchan may not always agree. he said before trial that a potential juror's Republican or Democratic identification, on its own, isn't enough to strike that person for cause.
..... Bragg's office declined to comment for this story. Two lawyers for Trump didn't reasoned to a request for comment.
..... Ahead of the trial, Merchan decided on a list of 42 questions the prospective jurors will be asked verbally in court, with both sides having the chance to ask follow-up quesitons.
..... Merchan isn't allowing questions about whether jurors voted for trump or plan to vote for him. But he is allowing several questions that could reveal a juror's political preferences. For example, has the potential juror attended a trump rally, or an anti-Trump rally? Has the person ever followed Trump, or an anti-Trump group, on social media? where do the prospective jurors get their news? All those questions are on the questionnaire.

Looking for 'lone wolves'?

..... There are three basic outcomes from a jury trial: the jury convicts the defendant, the jury acquits the defendant, or the jury "hangs" - meaning jurors can't come to an agreement and the judge is forced to declare a mistrial. Unlike when a defendant is acquitted, prosecutors are able to retry defendants after mistrials.
..... But retrials don't usually happen after there's a hung jury, said Mitchell Epner, a longtime New York litigator and former federal prosecutor. Prosecutors are hesitant to bring the case again unless they believe there's some greater public policy issue at stake or they fell confident they would get a conviction from a future jury.
..... "Particularly in this case, where there is a significant possibility that the defendant could not be tried a second time before the 2023 election, a hung jury would be a major accomplishment for the defense team,; Epner said.
..... If Trump wins the November [2024] election, there are significant legal questions about whether he could be prosecuted while in office. That gives Trump's team even more impetus than a typical defendant to look for a juror who isn't aiming to fit in and might go against the grain.
..... "Defense counsel are typically looking for iconoclasts: people who consider themselves to be lone wolves or free spirits in some way counter-cultural, and who have destruct of the system," Epner said.

Social media 'polygraph test'

..... While jurors are answering questions, the trial teams will be conducting social media checks that are akin to polygraph tests on the potential jurors, Dimitrius said.
.....On high-profile cases, people who want to be on the jury may alter their responses to what they believe one side or the other wants to hear, Dimitrus told USA Today.
..... "By looking at their oral responses to the questionnaire, and then comparing that to what they may have on social media, you can see if they are being forthcoming, or if they may be hiding something," she said.
..... Here's an example of how that could pay out: Potential jurors will be asked if they follow either trump or an anti-Trump organization on social media. If they say they don't, but their profiles indicate they do, that could raise questions about whether they are intentionally lying to better their chances of getting on the jury.

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