Picking a jury in Manhattan: The art of the feel

The “hush money” election-interference case may be the smallest potato in the patch of Trump’s four indictments. But its significance is profound.

It’s all too easy to dismiss as a peccadillo the New York charges against Trump — his alleged falsification of business records to conceal a hush money payment to porn actress Stormy Daniels late in the 2016 campaign. Sure, relative to allegedly subverting American democracy after the 2020 election and jeopardizing national security by withholding classified documents, it is.

But it is plausible that this alleged election interference altered the outcome of the 2016 presidential race, which was decided by a mere 80,000 voters in just three states. Trump’s detractors see it as the “gateway drug” leading to the events of Jan. 6.

Under our Constitution, the trial of a serious crime such as this begins with picking a jury. If I were the prosecutor picking this jury, I would look for intelligent, college-educated men and women with an apparent ability to grasp the facts and understand the court’s instructions as to the law. If I represented Trump, I would look for a heterogeneous jury, unlikely to come to a unanimous conclusion, consisting of MAGA-type people who listen to Fox 5 and might buy the line that the trial is a “witch hunt” and an “assault on America.”

The jury’s verdict must be unanimous. The judge will instruct the jury more than once that they are bound to follow the evidence brought out at trial and leave at home their biases and prejudices. The only thing they mustn’t leave at home is their common sense. The potential evidence against Trump is damning. He is accused in 34 felony counts of falsifying business records with intent to defraud, intent to commit another crime and to conceal the commission of that crime.

Trump declared his candidacy for president in June 2015. Two months later, according to prosecutors, he orchestrated with David Pecker, the CEO of American Media, Inc., (AMI) publisher of the National Enquirer, a “catch and kill” scheme to suppress negative stories from reaching the voting public. In furtherance of the scheme, AMI paid $30,000 to a Trump Tower doorman with an allegedly scandalous story about Trump and $100,000 to Karen McDougal, a former Playboy model who claimed to have had an affair with Trump. It was part of both arrangements that the stories would not see the light of day until at least after the election.

In October 2016, Trump’s lawyer Michael Cohen allegedly paid $130,000 to Stormy Daniels as “hush money” so she would not go public with her story about a sexual liaison with Trump. To conceal the payment, Trump agreed to pay Cohen a total of $420,000 to reimburse him for the $130,000 paid to Stormy, grossed up so that Cohen could characterize the payment as “legal fee” income on his tax returns. Trump personally signed nine of the 11 checks made out to Cohen for the allegedly fraudulent payments. Trump argues that these were just bookkeeping errors.

Trump has denied the allegations, and under the law is presumed to be innocent.

The jury system has achieved iconic significance in our culture. Jury verdicts can be irrational or contrary to the evidence, or affected by racial, religious or class prejudice, but we continue to stand by them. As the appellate Judge Jerome Frank put it: “Prejudice has been called the thirteenth juror, and it has been noted that ‘Mr. Prejudice and Miss Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury.’”

The odds of a Manhattan jury having a preexisting unfavorable attitude toward Trump are substantial. Trump won a paltry 12.3 percent of the 2020 vote in Manhattan. Jury verdicts adverse to Trump have already been rendered in three other cases in New York since he left office. So while prosecutors can eliminate Trump supporters, Trump can’t possibly eliminate all the jurors who lean against him.

There are difficulties in picking an impartial panel in a city where a celebrity defendant is widely loathed. Judge Merchan began the process of paring their number to the 12 jurors and six alternates who will serve on the case. The ritual got off to a slow start, as more than two-thirds of the first group of 96 potential jurors raised their hands to say they could not be fair to Trump. The judge immediately excused them.

Jurors can be challenged for two reasons: for cause, because they cannot be fair and impartial; or by one of the parties, using up to 10 peremptory challenges permitting either the prosecution or the defense to excuse a juror for any reason (so long as it isn’t a prohibited reason like race, national origin or gender).

The remaining jurors will be called into the courtroom in groups of 18. They will each read their answers to the 42 questions on the questionnaire the judge devised with input from the prosecution and defense. The questions range from details about jurors’ backgrounds, including where they live and work, as well as inquiries about how they get their news and whether they’ve attended rallies or campaign events for Trump. They will also be asked whether they have ever supported extremist groups including the Proud Boys, Oath Keepers and antifa. But they won’t be asked whom they voted for in the last election.

A real oversight on the part of the district attorney and the judge is the absence of a question asking if they believe Trump won the 2020 election, as jurors were asked in E. Jean Carroll defamation case.

As of Tuesday evening, after two days of mind-numbing inquiry, seven jurors, including the foreperson, have made it through. Five more jurors and six alternates need to be seated. Trump’s lawyers have exercised six of their 10 peremptory challenges; the DA has used four of his 10. This process will continue until there are 18 jurors and alternates that neither side has struck. Then it’s game time.

In my experience, most juries accept that they are to focus only on the evidence coming from the witness stand and the instructions of the judge that bias, political persuasion or emotion has no place it their deliberations. But criminal trials involving public figures are often another matter. Remember that neither Roy Cohn, John Mitchell, nor John Edwards were convicted by juries, even though the evidence was overwhelming. Face it, a jury trial is a crapshoot, with justice the point.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.