Joyce Vance:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Joyce Vance in for Preet Bharara. Today marks the first day of the first-ever criminal trial of a former President of the United States of America, Donald Trump’s hush money prosecution brought by Manhattan DA Alvin Bragg will begin with jury selection, the process by which 12 jurors plus alternates are chosen from a random pool of Manhattan residents.

It will be the jury’s job to consider the evidence and render a verdict. Jury selection is more than just a routine preliminary that has to be completed before the real trial can get started. And experienced prosecutors will tell you that while cases aren’t usually won during jury selection, they can be lost. It’s a critical stage in the proceedings.

Joining me today to discuss how this process will work in Manhattan is my dear friend Mimi Rocah. Mimi is a former federal prosecutor and she’s currently the District Attorney in Westchester County, New York, just north of New York City. No one better to talk with about picking a New York jury. Thanks for being with us, Mimi.

Mimi Rocah:

Thanks for having me. Glad to be here.

Joyce Vance:

I thought we would just dive in because I have so many questions for you. Let’s talk about how the jury selection procedure will work because different judges do it differently. If you’re a lawyer in Alabama or a lawyer in California, or even a lawyer in federal court in New York or another county in New York, this process will be unique to this court and this judge. The judge has given us a little bit of a roadmap. What do we know about how he intends to strike a jury so far?

Mimi Rocah:

Actually Judge Merchan has really laid out, as you say, a roadmap in a letter to the parties where he explains that he’s going to have 18 prospective jurors. And first of all, we should say they’ve called hundreds of people for jury selection, which is…

Joyce Vance:

I saw 500. Is that right?

Mimi Rocah:

I think it may even be higher than that. Because remember, some people aren’t going to show up, and then a lot of people are going to be struck for various reasons, and we’ll get into that. I think here you have to start with a really big pool, which is what they’re doing. The judge said that he will then have 18 prospective jurors in the box, in the jury box, at a time, and he’s given them 42 questions in a jury questionnaire, which have mostly been agreed upon by the parties.

I think there were a few that the parties couldn’t agree on and the judge ruled on himself what the final questions would be. After the jury questionnaire questions, which I know we’re going to talk a little bit more about, the prosecutors then get to ask questions of the 18 jurors in the box. They get to voir dire them, and then the defense does. And then we go into challenges for cause challenges for the first 12, because that’s how many full-time not alternate jurors will be seated, and we’ll talk about what for cause means.

And then peremptory challenges can be raised for the first 12, and each side gets 10 peremptory challenges in total. And then basically whoever is left from that process gets seated as jurors for the trial. And then they move on to the next group of six jurors. Because remember, we said there were 18. They first are going to question 12, and they repeat the same process until 12 are selected. And then from there, they choose alternates.

Joyce Vance:

So as I understand it, the goal is to end up with 12 jurors and six alternates. And we need to explain I think a little bit how this process works. You’ve talked about the big pool of jurors we’ll start with. Obviously there’s a winnowing down process, and it consists of these two kinds of strikes, removals of jurors that you’ve referenced, for cause and peremptory. Can you describe both of those?

Mimi Rocah:

Right. So for cause is very specific and it is actually outlined probably in every state. But certainly in New York criminal procedure law, it’s outlined what constitutes a valid for cause objection. Again, very specific. Judges will emphasize this because they don’t want attorneys using for cause challenges when really they should be using the peremptories, which we’ll get to in a second. So for cause basically is that someone is not qualified to serve as a juror. For example, they’re not a citizen.

And here’s the broadest one, that the juror has a state of mind that is likely to preclude him or her from rendering an impartial verdict based upon the evidence at trial. In other words, that’s when you hear people talk about the requirement that a juror be fair and impartial. That’s that requirement right there and that’s the one that gets the most play, if you will, during jury selection. There’s also requirements that a potential juror not be related in some way to the defendant or a victim.

They cannot be someone who was a witness in the grand jury or will be a witness at trial or someone who served on the grand jury. But again, once we get through the basic qualifications under the law, the one that really gets the most discussion during jury selection is do they have that state of mind? Can they be fair and impartial?

Joyce Vance:

So for cause strikes are pretty much just what they sound like they are for a good reason. And then we get to peremptories. Can you explain what those are and how lawyers decide which of the jurors to exercise them on?

Mimi Rocah:

Yeah, so peremptories are much broader. They basically are a challenge by either side without any, as you said, good cause, without any explanation. So it can be that the prosecutor doesn’t like the way that that potential juror is looking at them or at the defendant. It can be that the defense doesn’t like what that juror does for a living. They think that will in some way badly for the defendant influence their decision. So it can be for a reason, but you don’t have to state it.

The one thing it cannot be or the one category it cannot be is on the basis of the potential juror’s race, ethnicity, or sex or gender. And we can talk more about that. And by the way, these, as you know, Joyce, are the same rules, peremptories for cause and the requirement that it not be on the basis a strike of race, ethnicity, or sex, those are all the same basically under state law as they are under federal law. There are some differences in jury selection, but so far everything we’ve talked about is basically the same.

Joyce Vance:

So Mimi, I had a pretty standard practice when I was picking a jury. I had Huntsville, Alabama in my jurisdiction. Literally the city is full of rocket scientists. And I had some experience with scientists, rocket scientists in particular, early on that led me to believe that they were very precise.

They like the evidence to add up. Two plus two had to equal four. It could not equal 4.1 or they simply wouldn’t convict. So my practice was to strike them from my jury no matter what. Did you have any strange practices like that? I mean, how did you as a prosecutor and how do you now decide who to strike and who you’re willing to live with?

Mimi Rocah:

I don’t know if I would call our… I mean, yours is very specific and very tied to geographic place where you were. In the Southern District, we generally had a rule or understanding that people who were social workers, even teachers tended to not be people that we as prosecutors would want on the jury. Not everyone, and sometimes there were exceptions. And the reason for that is, as you say, the same idea that a social worker is someone who’s going to really think about, well, why did the person do this?

Whether it be the defendant or the witness and get into a psychiatrist, a psychologist would be the same, someone who’s going to… I’m going to use this term gently. My own mother was a psychoanalyst, so I don’t mean this in a critical way, but someone who’s going to overthink everything, as opposed to accepting the evidence as it’s presented by the prosecutor, by the prosecution.

Because the prosecution is telling a narrative, a story with facts, and you don’t want someone who’s going to start really thinking outside that storyline that you are presenting. So that tended to be the kind of people that if we were generalizing would not want on the jury.

Joyce Vance:

Did you want and do you want, I should ask in the present tense since you’re still the DA, do you want 12 strong-minded jurors who will look to the evidence? Are you looking for a different group dynamic?

Mimi Rocah:

Yeah. I mean, I think generally prosecutors like to have some strong-willed people on the jury who can be the leaders, at least one or two. But no, you really don’t want 12 very strong-minded people because it’s going to be harder for them to reach consensus. I mean, you want people who are going to go along with the general thinking so that they can reach consensus. I remember I think it was during the Manafort trial, there was a birthday of one of the jurors and there was singing heard from the jury room of happy birthday and they were celebrating.

And I remember saying at the time, “Oh, that’s a good sign for the prosecution,” because it means this is a happy jury. They get along and they like each other. And people were surprised that I was reading so much into it. But as you know, those signs that a jury is getting along before they have to deliberate are very important because it can get very intense when juries are deliberating. If they generally come into it as a jury that likes each other, gets along, it’s more likely they’re going to reach consensus.

And that’s what you want as a prosecutor. You don’t want a hung jury, which means you have a holdout, which means they could not reach consensus. Obviously you want the consensus to be conviction, you as a prosecutor, but you can’t get that if there are a strong holdouts.

Joyce Vance:

So what does that mean, the search for the juror who will hang up the decision? If you’re a defense lawyer, that’s the juror that you obviously want. What does that mean Donald Trump’s lawyers will be looking for here?

Mimi Rocah:

And this is tricky in any case and I think probably more tricky here in terms of almost judging the credibility of these potential jurors, whether they’re being straightforward about their views because people do have strong views about this person. But really what you want is someone who as a defense, someone who isn’t going to necessarily follow the crowd and maybe is more independent and more individualistic and more of a contrarian. So I mean, obviously, sure, they would love to get someone who is a Trump supporter ideologically or otherwise.

I think those people are going to generally, unless they’re not honest and it’s not weeded out, but those are probably going to… I think this is a savvy enough judge and prosecution that those people will get weeded out on both sides, the sort of ideological extremes. But what the defense is looking for as the defense is in any case is someone who does not feel like they have to go with what the majority… Because in all likelihood, in most cases, the majority of a jury does go with the prosecution and want to convict.

By the time you get to a trial, you have a case that is strong enough that can convince a majority of people. I don’t know if that will happen here, but again, if you’re the defense, you’re looking for someone who isn’t going to follow the crowd, so to speak.

Joyce Vance:

And I think it’s important to acknowledge that that’s more of an art than it is a science. In Alabama where I struck juries, we would strike in writing. After we finished voir dire, we would fill out on paper a form. And every once in a while, both the prosecution and the defense would strike the same juror using a peremptory challenge. And I think that underlines for me that sometimes we all see these things a little bit differently.

But one thing that’s very much ingrained in prosecutors is something you raised a second to go, the Batson rule, and this notion that you can’t strike a juror because they’re Black or because they’re a woman. That’s a form of discrimination that defeats the principle of holding fair trials. You can strike somebody because you don’t like how they look or because you’re afraid of rocket scientists, but not because of these constitutionally protected characteristics. So how will that play out here in jury selection?

Mimi Rocah:

Well, I mean, it should play out the way that it always plays out, which is basically if one party appears to be making strikes as we call them on the basis of something improper like race or gender or any status that implicates equal protection, sometimes the judge or the other party will make a Batson objection. And then the party who’s doing the striking that is being objected to will have to give a nondiscriminatory reason.

No, I’m striking these three women because they are teachers or because they are from a different part of the country and I want people who were born in New York. I mean, it can be geographic like that, but not because they’re women. And so while you don’t generally have to state a reason for peremptories, you do when there is a Batson challenge and it has to be a neutral nondiscriminatory reason, and then the judge will rule on that whether they think it’s a valid reason or not.

Joyce Vance:

This is starting to sound very complicated. And in the typical case, I could strike a jury usually in several hours, sometimes it might take a day or two. What do you think we’re looking at here based on the size of this jury pool, the complexity of the issues, the enormous amount of pervasive pretrial publicity? What’s your best guess?

Mimi Rocah:

It’s so hard to give time estimates, but I do think it will take longer than in your average case for all the reasons one can imagine. I mean, not only is this a former president and there is Secret Service present and there are just logistical security type issues that will make everything take longer, but also this is a person that generates a lot of feelings from a lot of people. And so the judge has already said that basically anyone who says they can’t be fair and impartial, the judge is going to let those people be excused without further questioning.

And while in some ways that cuts down on the time because you don’t have to then individually question each one of those jurors to figure out can you really be fair and impartial or not, it also means you’re going to get through a lot, that 500 as we talked about. That’s why if that’s an accurate number, there are so many being called in because you’re going to go through numbers very quickly and it’s going to take a while to get the people who are really qualified. But I do think this judge is clearly one of the more efficient judges that we’ve seen, that I’ve seen in state or federal court.

And that can make such a huge difference as you know. I had trials where there were judges who really didn’t keep up the pace and let people dilly-dally and stall and jurors get out of it without a good reason, versus judges who, like Judge Kaplan for example, who we’ve seen at other trial, I mean, he runs it so efficiently. And it’s the tone that’s set. We’re not here for gamesmanship. We’re here to do something really serious and important and we’re going to get it done and we’re going to get it done right.

And I think this judge falls much more into that category than any other. So I would say a week is a long time to pick a jury, but I wouldn’t be shocked if it took a week, but I think it could take less than that. But I would not say a day or two either. So somewhere between a couple of days and a week, I’m going to guess. What do you think, Joyce?

Joyce Vance:

I think that you’re dead on the money. I think that’s a reasonable range. I think back to the E. Jean Carroll trial where they found a jury in a matter of days. That was a civil matter, not a criminal matter, so this may be a little bit more difficult. But I think you’re pretty much on target. And from your description of Judge Merchan, I think you have the same view that I do, that he’s very efficient in the courtroom, very much in control.

Do you think despite that that there are opportunities in this process for Trump’s lawyers to delay the start of the trial itself, the start of the evidentiary phase of proceedings? Or do you think that once jury selection is begun, that this is an inevitable march towards trial?

Mimi Rocah:

Yeah, I don’t think there’s much more opportunity for delay here. Because to the extent that people have been saying that a lot of the motions and other things that have been made were for delay and, of course, that’s been a long theme, though I think there’s other themes and other reasons why some of these motions were made to get certain information out into the ether about the judge and the prosecutors, et cetera.

But we’re not talking about that kind of delay. I mean, at most, we’re talking about a couple of days or something. So I don’t think that delay game, if that’s what it was, is really in play anymore once jury selection starts. And as you know, once a jury is seated and picked and in place, double jeopardy attaches. And so the judge and the prosecutors really have an interest at that point in making sure that the trial proceeds because you have a seated jury.

Joyce Vance:

I mean, once double jeopardy attaches, the government can’t try the case a second time. So if the jury acquits or if the judge directs a verdict in the defendant’s favor, that’s it. Everything’s over. So those incentives absolutely exist at that point. Mimi, something that we started out discussing and I wanted to go back and just pull this thread a little bit is we talked about how voir dire would proceed. And I heard a role in that for everyone, but not for the judge. Do you think that he’ll play much of a role personally in voir dire and questioning of the jury?

Mimi Rocah:

First of all, I’m trying to get over the fact that you say voir dire as opposed to voir dire. Is that a Southern thing or am I just been pronouncing it wrong this whole time?

Joyce Vance:

I’m just super cultured and I was amused because Preet had been giving me a hard time. I say mandamus, and we actually got a letter from a reader, a classicist, who plotted my pronunciation and chewed Preet out for his. So be careful.

Mimi Rocah:

Okay. All right. Okay. Yeah.

Joyce Vance:

So what do you think, role for the judge here?

Mimi Rocah:

Well, the judge has to play a role here, whether it’s… So one thing we should talk about that I don’t think we’ve mentioned yet is a big, big difference between state and federal jury selection. In federal court, for the most part, the judge does the voir dire or voir dire. In state court, it is by statute the judge has to, it’s a must, allow the defense and the prosecutors to ask a reasonable amount of questions. Now here it’s a little bit different because some of the questions have been agreed to in advance in these written questionnaires.

But again, the prosecutor and defense will have their opportunity. And I just want to tell one quick story to emphasize how different this is. I think it was maybe just my second trial in the office, a narcotics trial, very low profile, common marijuana grow house type trial. And the judge, Judge McKenna, and I can’t believe I didn’t know this, but did not do voir dire himself. He allowed the parties to do it. I had a trial partner and we were very caught off guard by this. We had no idea.

We were not prepared to do it ourselves, and we really were caught flat-footed. Because the defense attorneys were state, they had practiced in the state, they knew how to do it, and they got so much of their… I don’t want to say their case, but they really used voir dire in a very effective way for themselves talking about reasonable doubt and what it means and really getting a lot of their themes out there to the jury.

I remember coming back to the office during a break and saying, “I need someone who works in New York State Court, a prosecutor, someone who’s from the DA’s office to help us now.” And we try, but it was kind of too late at that point. So it goes to this point of…

Joyce Vance:

Wait, what happened? I mean, how did the case come out for you?

Mimi Rocah:

So one of our defendants was convicted. It was the guy that actually had the key to the warehouse, so he was probably going to be convicted regardless of anything else. And the other two were acquitted. That’s not the only reason. It was a very circumstantial case, and it just wasn’t quite investigated as well as it could have been. But I do think that the jury selection was the beginning of that.

So this goes to the point of trials can be certainly lost during jury selection and certainly you can get hung juries based on what happens in jury selection. I mean, I think the judge, so while he may not do as much questioning as one would see… First of all, again, here with these written questionnaires, I do think it’s different, but the judge sets the tone and the judge is going…

I think that’s very important too. I had a big mob trial where the judge really just let it be more of a circus atmosphere. This is going beyond jury selection a little bit, but it starts there. Again, there was a hung jury. I know it sounds like I never had any convictions. I did. These are the two where I didn’t. I think the judge really sets the tone for that and it can have a big impact.

Joyce Vance:

Judge Merchan sent the parties this letter outlining all of the questions that were agreed upon or some that he crafted himself, speaking of setting the tone. Is there anything in the questionnaire that jumps out at you?

Mimi Rocah:

I mean, I think it’s a very reasonable questionnaire. These are common questions in part. We always would ask, the judge would always ask, what newspapers do you read? Because it gives a little insight for the lawyers then to have information, all right, where is this person coming from? And it helps eliminate some of the extremes that we were talking about earlier.

And that’s your story about the defense and the prosecution agreeing. In a lot of ways, sure, a Trump defense lawyer would love someone who only watches Fox News and only reads right wing publications, but the prosecution is not going to allow this. So you’re going to end up more with people in the middle who either don’t read newspapers a lot or read I don’t know what is considered a middle of the road paper.

But that’s what a lot of the questions are about I think are eliminating the extremes. Are you a member of a group like the Oath Keepers? That would be an extreme. Are you a member of Antifa? That would be an extreme. And so I think that’s what these questions appropriately are trying to suss out.

Joyce Vance:

So is it realistic to think that we’re going to end up with an impartial jury in this case of all cases?

Mimi Rocah:

Look, I’m one of those maybe sentimentalists, traditionalists who does believe in the jury system. And that for the most part, even people who are not neutral when they walk in the door, once jury selection has happened and they are seated and in listening to the way the evidence is presented and importantly, the instructions by the judge about only judging the case based on the evidence, I do believe that you can get an impartial jury.

It doesn’t mean those people don’t have any personal feelings or thoughts, but the same way that a prosecutor is supposed to separate their own personal thoughts and feelings. I mean, we do that every single day as prosecutors. And I think jurors are asked to do that during trial. It’s not perfect, and so it doesn’t happen in every trial. But I do think in the majority of trials, it is possible. I think it’s possible here. I can’t guarantee it. This is obviously a highly unusual case, but I think it’s very possible, again, especially with this judge.

Joyce Vance:

I think that’s right. I think jurors take it seriously when they’re asked if they can set aside everything that they’ve heard outside of the courtroom. I think that they’re thoughtful. They understand that they’re going to have to take an oath. It’s one of those moments I think not just in the criminal justice system, but in our civic life as a democracy that always reinforces for me the belief that we do have the capacity to do this right.

Mimi Rocah:

And you mentioned the oath, that’s a really good point. I mean, there’s something about taking an oath that, again, we do as prosecutors, lots of people have to do it, but some jurors have never had to really do it before. And just the process of doing that, the same way a witness does it before they testify, I think can be very impactful.

Joyce Vance:

So can we talk a little bit about what it means to use an anonymous jury because the judge has said that he’s going to use anonymous jury procedures in this case? Obviously they’re being protected from the risk that some of Trump’s followers might not have their safety in the uppermost of their thoughts. What does it mean to use an anonymous jury and how will that impact the proceedings here?

Mimi Rocah:

So in this case, what it means is that the jurors’ names will not be disclosed to the public. In other words, there won’t be a list put out. They won’t use the jurors’ names during jury selection. They will use their numbers. The jurors’ residence and where they work will definitely not be made public to anyone, but the jurors’ names, their identity will be known to the parties.

It’s a little bit different. In federal court, as you know, it’s not common, but if you do get a ruling to have an anonymous jury, it’s the names, it’s the address, everything is very much kept under seal. In New York State, it’s harder to get a full anonymous jury like this. The courts really don’t seem to favor it. The judge has to make specific findings as to why it’s necessary.

Here the judge did that based on a motion by the prosecutors saying that the jurors have been called out in past cases involving this defendant, the history of, as you said, some of the followers of this defendant. And so the judge made the appropriate findings, but also said, “I’m not going to close the courtroom because of this.” So it’s a little bit of a middle ground.

He’s not saying, we’re going to keep the press out, and there’s not going to be extra limits, but they’re going to make…. And they’re not necessarily even going to tell the jurors, unless they need to, that it’s an anonymous jury. They’re just going to tell them in the beginning, “You’re only going to be referred to by your number,” but they’re not going to say, “We’re trying to protect your privacy.” But the word anonymous jury, that phrase, is not going to be used according to the judge unless it needs to be to explain.

Joyce Vance:

And that’s an order to protect Donald Trump’s due process rights, to avoid giving the jury the impression of some sort of danger. Is that correct?

Mimi Rocah:

Yes, exactly. The general thought is that if a jury knows that it’s an anonymous jury, it could prejudice the defendant.

Joyce Vance:

So Mimi, you’ve referenced a couple of times now differences between the federal system and the New York system, something that you’re uniquely qualified to talk about having worked in both systems. Is there something unique about New York’s criminal law and procedure differences with federal and other state practices that you think will impact the case? Maybe we can close on that note. How do you think the fact that this trial is happening in Manhattan might influence the outcome?

Mimi Rocah:

I can’t help but always making those comparisons for obvious reasons. It’s fascinating to me the differences. And one thing that I’ve learned in my time as DA is that New York State law is quite defendant-friendly. It is generally both in procedure… I mean, starting with the fact that in the grand jury, the prosecutors have to put firsthand witnesses in the grand jury.

You cannot have hearsay witnesses in the grand jury the way you can in federal court, which is just a huge, huge difference. And that carries through all the way through, whether it’s the way that crimes get categorized as misdemeanors versus felonies, and then the seriousness of the felony, all the way to procedures about evidence and evidence coming in and discovery.

It is a very defendant-friendly state, and that is intentional. I’m not judging that as good or bad. It just is that way in New York State. And so that means all defendants, including Donald Trump, will benefit from that. So while people generally think that prosecutors have the upper hand, in this case, I think a lot of those generalizations are not true. Because first of all, this is not just any defendant against the big bad government.

This is a defendant with a very powerful team of lawyers. And again, it is in a state where there are just quite a few advantages for the defendant that you wouldn’t see in other courtrooms.

Joyce Vance:

So that is such a great point to end on, Mimi, because I think Donald Trump has this narrative of, this is a witch hunt and I’m being prosecuted for political purposes. But if I’m hearing you correctly, you’re saying that New York is a very defendant-friendly environment, and prosecutors have to go the extra mile here as compared to other jurisdictions.

Mimi Rocah:

Yeah, I think so. And there’s a lot of interesting things about that because bail reform, discovery reform, the people who really were the driver of that, I’m going to generalize for a minute and say probably are not Donald Trump fans. But again, when you pass laws like that, they apply to everyone equally.

Joyce Vance:

Well, this has been great and super informative. I hope you’ll come back and chat with us some more during the trial process.

Mimi Rocah:

Of course, great to talk with you about it, Joyce.

Joyce Vance:

Thanks for being with us, Mimi.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former US Attorney Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen.

Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. And the CAFE team is Matthew Billy, Nat Weiner, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.