Note from Elie: How on Earth Do You Pick a Jury For a Trump Trial? 09:31

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Hey everyone, Ellie here. Happy Friday. Well, this week we're going to do one of those things that I enjoy most and that I think you all benefit from and enjoy as well. I'm going to take you to the game behind the game. I'm going to give you a little bit of insight into how prosecutors really approach cases strategically, how things sometimes play out in the courtroom. As we sit here together, we are 10 days out from the start of jury selection in the criminal case state of New York,

versus Donald John Trump. I suspect we'll see some histrionics from the defense team between now and then trying to get this date postponed. I don't think they'll work. And I think that in a week and change from now, we will be into jury selection, which brings us to this week's topic. As always, keep sending me your thoughts, questions, and comments. I do really enjoy reading them to letters at cafe.com.

Jury selection, a grizzled New York criminal defense lawyer once snarled at me. It's the whole ballgame.

This was during one of my first trials as a prosecutor. I was maybe 31 or 32 years old, seems like a long time ago. And the other guy had been practicing since before I was born. I didn't see it back then. I would have said, well, sure, jury selection is important, but really it's all about the facts and the law. But now I know that the old battle axe 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 10 days. And while it'll be difficult, it'll get done. The end result will likely please prosecutors with the Manhattan DA's office. The goal of jury selection, according to the leather bound law books, is to select 12 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 John 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. Now, here's where the process becomes all-important.

We'll start off 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 then pose questions to each potential juror to determine whether that person needs to be dismissed, what we call for cause. Generally, you'll see two types of for cause dismissals. First, some people just cannot 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 cannot 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 potential juror for cause, then the prosecution and the defense each can exercise up to 10 peremptory challenges. Now, these precious strategic chits enable the parties to remove a potential juror for almost any reason other than constitutionally prohibited factors like race or sex.

Ultimately, after both parties use up their peremptory strikes, we're left with 12 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, which is Manhattan, this process will result in a stacked deck for prosecutors. Let's run some rudimentary math here. 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. He doesn't, but again, we're rounding up.

So out of our first 32 potential jurors who get through that for cause dismissal phase before the parties exercise their 10 peremptory strikes each to narrow the pool down to 12 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 10 peremptory strikes, which they can then 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 on 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 pretrial questionnaire that the public figure she most admired was...

OJ Simpson, who you may have heard, was acquitted on murder charges a few years back. We at the prosecutor's table did not 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 follow-up questions of individual jurors, the judge asked this potential juror why she admired O.J. 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 potential juror for cause, but the judge declined. So we had to burn one of our precious parentery challenges to eliminate the OJ 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 that person would make a sympathetic or hostile juror. The O.J. 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, of course, 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 supporter. The DA's office just needs to play the percentages while Trump's lawyers must hope that an undetectable outlier somehow slips through.

Of course, the evidence matters too. I'm not so jaded as to suggest that it doesn't. 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. Thanks for listening, everyone. Stay safe and stay informed.

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