• Show Notes

Dear Reader,

How best to decide who is guilty of committing a crime? Until 1641, when it was abolished, the Star Chamber, a group consisting of members of the King’s Council, made those decisions in England when people who were considered too powerful for ordinary courts were under suspicion. You can guess how that ended—in corruption. King Charles I used the Star Chamber to crush opposition to his policies. That’s the likely outcome when the criminal justice system is controlled by the head of state. 

Our Founding Fathers, eager to leave behind all the trappings of a system where kings were above the law, established a jury system for both civil and criminal trials, importantly, leaving decisions about who is guilty and of what to a jury of a defendant’s peers. In Federalist Papers No. 83, Alexander Hamilton wrote, “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”

In practice, there are sometimes questions about juries’ verdicts; the O.J. Simpson and Kyle Rittenhouse acquittals, the convictions of the Central Park Five for a rape they were proven innocent of, but only years later. These cases present important issues, but they are also outliers. Tens of thousands of criminal cases go to trial across the country every year and juries handle them successfully. It is not a perfect system, but no one has come up with a better one. And the jury system fulfills the important purpose of providing citizens with a check on the enormous power invested in prosecutors. Donald Trump demonstrates that principle, with his recent boast that he intends to use the criminal justice system to prosecute people he considers his enemies if he’s reelected. A jury is one of the primary lines of defense against that sort of corruption of the system.

But how does it work when the man who has acknowledged he wants to corrupt the system is the one who’s on trial? That’s what we’re watching play out in a Manhattan courtroom. For too many people, their view about whether the jury system “works” may come down to the verdict—if it aligns with their view of the case, then they’ll think the jury got it right.

That’s one of the results of living in an era where public trust in essential democratic institutions has been sharply eroded. Much of the damage has been done by politically motivated people who see advantage for themselves where the foundations of our system of laws and government are no longer credible, as with Trump’s attacks on law enforcement and the intelligence community. Institutions of longstanding integrity are vulnerable to attacks, like the ones on public health that undercut our safety during a pandemic or Trump’s more personally motivated attack on the National Archives, a custodian for our nation’s history. As we’ve learned, over time, if you undercut public confidence in the institutions, it becomes more difficult for them to work effectively and our way of life is disrupted in ways big and small.

It’s easy to form an impression about a case from what you see on television or read in the press. But juries have an entirely different level of exposure to the evidence in a case. They are instructed in the law by the judge, they hear all of the evidence from start to finish, and they can observe the demeanor of the witnesses firsthand. They are charged with paying close attention from their front row seats and at the end of trial, can listen to the lawyers’ assessment of the case and how the evidence fits together. And then, they deliberate. 

Jurors undoubtedly bring their own prejudices and biases to the courtroom. However, experience shows they take the judge’s instructions to set them aside seriously. After the trial of Paul Manafort, a juror who identified herself as a Trump supporter was interviewed and said, “I did not want Paul Manafort to be guilty, but he was, and no one’s above the law.” When twelve Americans with different views and backgrounds come together in the jury room, their interaction leads them to set aside preconceived notions and deliberate seriously in most cases. 

Will that happen when Trump’s jury deliberates? Can we have confidence in their verdict? Trump is already suggesting that we can’t if he’s convicted, in a move that’s reminiscent of the way he operated for months in advance of both the 2016 and 2020 elections to suggest that if he lost, the outcome was rigged. As jury selection got underway, he posted on Truth Social that Fox Host Jesse Watters said, “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.” (Watters, in fact, said the first part, but Trump added on the bit about doing it to get on his jury.) His post earned him another finding of contempt from the judge in the case. 

After 25 years of service as a federal prosecutor, I continue to have confidence in the jury system. The Manhattan DA’s case against Trump is a complicated one, based in some important regards on circumstantial evidence. The jury will have to decide whether to believe it. They will also have to decide which witnesses they believe, and, in order to convict on felony charges, they will have to agree that the prosecution has established that the false business records were created to conceal or assist in the commission of another crime. This is why we have a jury system—when cases are obvious or easy, they typically resolve with a plea agreement. When there is a dispute over the facts, someone has to decide where the truth lies and whether a guilty verdict is warranted. We could leave questions of guilt in the hands of a judge, or a king, or his star chamber. We do not. We entrust the lives and liberties of people who are accused of crimes in this country to the collective wisdom of juries. 

Stay Informed,