Dear Reader,

“Jury selection,” a grizzled New York criminal defense lawyer once snarled at me, “is the whole ballgame.” This was during one of my first trials as a prosecutor; I was maybe 31 or 32 years old, and the other guy had been practicing since before I was born. I didn’t see it back then – Well sure, jury selection is important, but really it’s all about the facts and the law! – but now I know that the old warhorse was entirely correct. The jury decides, they’re just a bunch of normal human beings, and if you’ve got a good jury, you’re good to go. If you don’t, you’re cooked.

Jury selection in the first-ever trial of a former president begins in ten days, and while it’ll be difficult, it’ll get done. The end result likely will please prosecutors with the Manhattan DA’s office. 

The goal of jury selection, according to the leather-bound law books, is to select twelve ordinary civilians who can put aside their personal beliefs and decide the case dispassionately, based solely on the evidence presented in the courtroom. That’s the overarching institutional principle, and it’s fine and lovely. But now let’s get real: for the lawyers, the aim is to obliterate anyone who might be inclined against their side, and to load the jury with as many sympathizers as possible. This isn’t some casual game of pickleball. This is warfare. 

The challenge here is that we’ve never seen a criminal defendant who inspires more polarized views than Donald Trump. People either worship the man or despise him – in Manhattan, it’s mostly the latter – and there’s little in between. The trick for the lawyers will be to suss out which jurors fall into which camp. 

Here’s where the process becomes all-important. We’ll start with a pool of randomly-selected Manhattanites who received their dreaded jury duty notice in the mail, with orders to report to the courthouse on the date of the biggest trial in recent U.S. history. (Can you imagine?) The judge and lawyers will pose questions to each potential juror, to determine whether that person needs to be dismissed “for cause.” Generally, you’ll see two types of “for cause” dismissals. First, some people just can’t serve as a practical matter – a heart surgeon who has to treat patients, a third-grade teacher who can’t leave her class to a substitute for two months. Second, some potential jurors hold obvious biases that can’t be overcome. In a Trump case, we’ll surely see many potential jurors dismissed because they hold such strong personal feelings for or against the former president that they can’t possibly rule impartially. 

If the judge decides not to strike a given juror for cause, then the prosecution and the defense each can exercise up to ten “peremptory” challenges. These precious strategic chits enable the parties to remove a potential juror for almost any reason, other than constitutionally-prohibited factors like race and sex. Ultimately, after both parties use up their peremptory strikes, we’re left with twelve people and, voila: there’s your jury. (The parties also will select a handful of alternates who will fill in if a juror gets sick or has to leave the case for some reason.) 

In New York County (Manhattan, that is), this process will result in a stacked deck for prosecutors. Let’s run some rudimentary math. In the 2020 election, Trump garnered a measly 12.3% of the County’s vote. Let’s be generous to Trump and say he holds 20% political support among Manhattanites. So out of our first 32 potential jurors who get through the “for cause” dismissal phase – before the parties exercise their peremptory strikes to narrow the pool down to twelve final jurors – we’d expect about six to be Trump supporters; let’s assume he gets a good draw and winds up with eight enthusiasts in that jury pool. Sounds pretty good for Trump, right? Some of them will almost certainly make their way onto the jury, right? 

Not necessarily. Remember, each party holds those ten peremptory strikes, which they can use to get rid of jurors for almost any reason. So while prosecutors can wipe the slate entirely clean of Trump supporters, Trump can’t possibly eliminate all the jurors who lean against him. 

But here’s the catch: the parties might not know exactly where a particular juror stands. Sometimes potential jurors play up their biases, to try to get booted off a jury. But jurors also tend to gloss over their predispositions, consciously or not; nobody likes to see himself as irrational or biased, and sometimes – especially in a high-profile case – people are drawn to jury service and the temporary power it brings. (Plus the free lunches; juries never return morning verdicts, for a reason.)

Here’s an example. I once tried a case in which a potential juror wrote in a pre-trial questionnaire that the public figure she most admired was… O.J. Simpson (who, you may have heard, was acquitted on murder charges a few years back). We at the prosecutor’s table didn’t love that answer, and we circled her name in red ink. The juror didn’t know it when she completed the questionnaire, but this trial involved a famous mob figure. On the day of jury selection, the judge introduced the parties, including the notorious (but somewhat charismatic) gangster. Later that day, when it came time for followup questions of individual jurors, the judge asked this potential juror why she admired Simpson; plainly straining to get onto our jury, the potential juror responded that she just loved watching him play football, and that her views had nothing to do with his post-NFL (alleged) crime spree. The judge then asked the potential juror if she could rule on our case fairly, and the potential juror said yes, absolutely. Unconvinced, we asked the judge to dismiss this individual “for cause,” but the judge declined. So we had to burn one of our precious peremptory challenges to eliminate the O.J.-admirer. 

The point is that potential jurors sometimes fudge the truth or act in bad faith, and it’s largely a guessing game. Prosecutors and defense counsel get a glimpse at a stranger’s personality profile, and have to infer from scattered clues whether the person would make a sympathetic (or hostile) juror. The Simpson example was an easy call. But most people present more ambiguity, and lawyers often are left to trust their raw instincts. 

This is why jury selection will be so crucial, and so fraught, in the upcoming Trump trial. Prosecutors have the mathematical advantage, given the jury pool and the selection process. But if they falter one time – if they miss one Trump enthusiast – they could wind up with a hung jury. (Prosecutors need all 12 jurors to convict; even one holdout causes a hung jury and a mistrial.) Prosecutors can retry a case after a hung jury, but that outcome would be disastrous for the DA’s office.

Still, at bottom, prosecutors have every advantage here. They’re picking from a distinctly anti-Trump pool, and they have the ability to weed out any – and if they’re good enough at it, every – Trump sympathizer. The DA’s office just needs to play the percentages, while Trump’s lawyers must hope that an undetectable outlier slips through. 

Of course, the evidence matters too. Our system assumes that jurors can and will put aside their personal views and decide any case impartially, and they usually do just that. But I’ve tried enough cases to know: given a choice between great facts and a shaky jury or shaky facts and a great jury – give me the jury, every time.

Stay Informed,

Elie