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February 27, 2020

Note From Elie: The Jury Decides The Case — Act Accordingly

Dear Reader,

When I tried cases as a prosecutor, we would keep our boxes of evidence and heavy binders in an unwieldy “trial cart.”  Picture your standard shopping cart — not those lightweight, smooth-rolling carts at Whole Foods, but the rickety, slightly misaligned ones at Stop & Shop — only shorter, wider, and even less aerodynamic. 

I had a rule: I always pushed the trial cart myself.  I’d never allow one of our well-intentioned paralegals to take on the menial task of pushing the cart from our trial prep room, through the courthouse hallways, and into the courtroom, while I strolled casually alongside.  Part of that trial cart policy came from my upbringing. I’ve worked plenty of menial jobs — my first official job title was “Potwasher” — and I simply would have been uneasy with somebody else doing the heavy grunt work for me. 

But part of it was strategic. You see, sometimes when walking to the courtroom, you’d come across a juror — in the hallway, by the bathroom, maybe getting on or off the elevator.  And I was trained to be so respectful — almost reverential — of jurors that I didn’t want to take the risk that one might see me and think, even for a second, “Well, look at the fancy prosecutor, too precious to push his own cart.” 

Maybe I was overthinking it.  But the jury, after all, decides the case.  Alienate just one juror out of twelve, and a conviction can become a hung jury, real quick.  So we used to have all sorts of techniques to ensure that jurors liked us — or at least didn’t dislike us.  For example, I was taught never to eat or drink anything, ever, in front of the jury. The jurors didn’t have food or drinks in the jury box, so you didn’t want to throw back a frosty Snapple in front of them while sitting at counsel’s table.  My fellow prosecutors had other tactics that ran the gamut from quirky (one supervisor told me to occasionally write something on my notepad, even if nothing interesting was happening, to make it look like I was paying attention or thinking smart thoughts) to the quasi-superstitious (a supervisor once castigated me for wearing dress shoes that slipped on but had no laces).

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While my conduct towards juries sprang largely from a simple desire to win, some part of it also reflected a deep respect for our most fundamental democratic process.  Chief Justice Joseph Story in 1883 called the jury the “great bulwark of …civil and political liberties,” noting its power “to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people.”  Countless judges and scholars have echoed the sentiment, before and since. 

Just think of it practically.  A juror is a normal, private citizen who gets one of those confusing notices in the mail; has to skip work and maybe find child care; walks into a strange and intimidating courthouse; faces questioning — at times including personal background questions — from a judge and teams of attorneys; sits through days, maybe weeks, of testimony (not all of which is riveting); and then decides whether to strip away the liberty of another human being.  It’s not an easy task, or fun, or convenient. But it is absolutely necessary that regular, everyday citizens perform this basic civic duty. Justice Story and the other old-time powdered-wigs types got it right: our system simply would not function without juries, and jurors.

This is why President Donald Trump’s attacks this week on a juror in the Roger Stone trial are so abhorrent.  Trump already has machine-gunned rage at pretty much everybody involved in the Stone case, aside from Stone himself (you know — the guy who chose to lie to Congress and threaten a witness, to protect himself and the Trump 2016 campaign).  Trump has assailed his own Justice Department — or at least those prosecutors who were independent enough not to do his political bidding.  And he lashed out at Judge Amy Berman Jackson, who presided over the case, calling her “totally biased.”

Both of these lines of attack are wildly inappropriate, particularly coming from the President.  Trump’s comments undermine the independence of the Justice Department and the judiciary, and they shake public confidence in our institutions.  But at least there’s an argument — I don’t agree, but it’s within the realm of reason — that judges and prosecutors choose to go into public life and, as such, are fair game.

But jurors are different.  Jurors are beyond the pale.  As Judge Berman Jackson noted, “While judges may have volunteered for their positions, jurors are not volunteers. They are deserving of the public’s respect, and they deserve to have their privacy respected.”  To reiterate: the President of the United States has launched repeated, public, personal attacks against a private citizen who did her basic civic duty. I wish I had a better way to say this, but — this is crazy, and he needs to shut the hell up.

By the way: where are you, Mr. Attorney General?  Two weeks ago, you boldly proclaimed that Trump must stop tweeting about Justice Department cases, that he was making it “impossible” for you to do your job.  Since then, Trump has openly defied your quaint declaration of independence, openly bashing your Justice Department, the judges who you appear before, and the juries who decide your cases.  And your response to all this? Silence. A profile in courage.

I can’t help but wonder why Trump doesn’t simply use his pardon power.  If he feels so strongly that Stone was mistreated by the Justice Department, the judge, and the jury, then just go ahead and pull the trigger.  Perhaps Trump fears the political repercussions in an election year of pardoning a liar and a conniver like Stone, and hopes somebody else will do his dirty work for him.  Or perhaps Trump sees some larger political benefit in de-legitimizing those institutions that are most capable of enforcing accountability. Maybe Trump’s attacks are not so much about Roger Stone as they are about causing the American public — or at least his most dedicated followers — to doubt our justice system.  Please, don’t fall for it.

Stay Informed, 


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