Day Three: We Have a Jury

The challenge of "notarizing Trump's tongue" and other adventures in voir dire

Jury selection is usually tedious, but not in this trial. Day Three felt like voir dire on steroids, as the first jury ever to possess the power to jail an American president ended up being selected in about a third of the time most people expected.

“We have our jury,” said the judge at 4:35 p.m., and I almost expected a puff of white Vatican smoke to waft out of the chimney of the courthouse. With the alternates to be selected on Friday, opening statements were now scheduled for Monday. April 22.

My bottom line: I could be wrong, but I don’t sense any “stealth jurors”— Trumpsters who will hold out hours or days to achieve a mistrial. There are two lawyers on the jury — a rarity — and if they are anything like most of their brethren around the country, they think Trump is a threat to the rule of law but revere the impartial assessment of the evidence. It’s reasonable to expect they and a few other well-educated jurors will lead on assessing reasonable doubt, and will help keep their fellow jurors properly focused on the judge’s instructions.

The day began with Judge Juan Merchan perturbed that Juror #2, a cancer nurse, was hearing from her friends that she had been targeted. It turned out that Jesse Watters, a menacing Fox News host, had said the nurse on the jury’s claims of impartiality was “concerning” because she said during voir dire that “no one is above the law.” It’s unsurprising but nonetheless depressing that the house organ of one of our two major political parties — a cable network with millions of viewers — has a star who believes that the idea of “Equal Justice Under Law” emblazoned on courthouses across the country is just another liberal talking point.

The judge invited the nurse to the bench to confirm her discomfort before excusing her.

Then came a moment of unease for the 85 or so journalists in the courthouse and their editors. Merchan said, “I am directing” the press to “use common sense” and not be specific about the jurors. Referring to Juror #1 (the foreperson because, under New York State law, he was selected first), he said there was no need to report that he spoke with an Irish accent.

Was the judge on the verge of issuing a flatly unconstitutional order? Or was it more of an informal admonishment? I leaned toward the latter. Given the legitimate security concerns, I immediately took down from Old Goats any references in earlier posts to jurors’ employers (I had only included large ones) and deleted that one juror had a widow’s peak and another wore a purple jacket. Other reporters struck a different balance that I later agreed with: No mention of specific workplaces, no matter how large, but we have a perfect right to indicate the race, gender, sexual orientation (if mentioned by the juror), occupation, appearance and accent of jurors. It is indisputably newsworthy that the foreperson of the jury in the historic trial of an immigrant-bashing former president is himself an immigrant, as is Judge Merchan who emigrated from Colombia as a child.

After the judge addressed the media, it emerged that Juror #4 — a Puerto Rican IT consultant — was revealed by the prosecution as having been arrested for ripping down right-wing posters in Westchester County. That was a problem because he had apparently written on the jury questionnaire that he had never been arrested. By the time he showed up two hours late to try to explain why he shouldn’t be dismissed, the judge had lost patience and booted him, which was fine with both sides.

By now, everyone in the courthouse was thinking the same thing: Brrrrrrrr! Trump’s attorney, Todd Blanche, asked Merchan if it would be possible to turn up the temperature “just one degree.” Merchan said if he did, “It would probably go up 30 degrees…it is cold, there’s no question it is cold, but I’d rather be a little cold than sweaty, and really those are the choices.”

I was cold, too, and wearing my overcoat but more important I was also, like Trump, a little “disgusted” by the bathrooms, especially those on other floors, which later in the day some of us had to use because of lockdowns in the hallway when Trump or jurors were passing through. The one on the 15th Floor near the courtroom that Trump used (alone, of course) was OK, though it had graffiti on the garbage bin, a sign of some of the miscreants who had passed through.

This courthouse, known as 100 Centre Street, was designed by one of the same architects who gave us Rockefeller Center, but it seems nothing has been done to fix the building since the 1930s. You have to search for the Art Deco details, which don’t show well in the old-style fluorescent lighting. Overall, the place is a real dump — worse than the Bronx Criminal Courthouse Tom Wolfe describes in Bonfire of the Vanities.

When jury selection resumed in the afternoon, there were seven seats to fill. Given all the challenges, it didn’t seem likely to happen by adjournment, though questioning of jurors in the morning went smoothly, with well-educated Manhattan professionals (who knew better than to have posted insults on social media) sailing through.

More than half of both the first and second jury panels (about 100 reluctant jurors in all) decided before being questioned that they could not be impartial — a reflection of the opposition to Trump in Manhattan, the borough he once devoted his twin careers in real estate and shameless publicity to conquering from across the river in Queens.

One potential juror, originally from Italy, took himself out after confessing that it might be hard for him to maintain his impartiality after all the comparisons between Trump and Silvio Berlusconi he had seen in the Italian media. While Berlusconi was much more successful in business and even as prime minister than Trump, it’s not a bad temperamental comparison, though Trump still has much more in common with the balcony-strutting dictator Benito Mussolini.

The DA team’s peremptory challenges were used to dismiss those they suspected might be in the 15 percent of Manhattan voters who voted for Trump in 2020, including:

• A self-described “wannabe hockey player” who was impressed by Trump’s ability to rebuild Central Park’s Wollman Rink in the 1980s when the city could not.

• Another, who won laughs when he said he has a flip phone and doesn’t “watch any podcasts,” was most likely struck by the prosecution because of his background in law enforcement, an occupation that both sides believe favors Trump.

• And a third, a banker, was presumably struck in part because she said that her uncle was an accountant for disgraced casino owner Steve Wynn, who gave his friend Donald $1.5 million for his 2020 presidential campaign.

Prosecutors and defense attorneys informally stipulated from the start that every potential juror had some feelings about the man. The question was how strong those opinions were. The prosecution fretted about potential jurors whose slightly positive statements under questioning suggested they might be holdouts for a mistrial in the jury room; the defense worried about potential jurors who were unmistakably critical.

This was a voir dire about passion, not appearance. According to more than one account, Trump picked his first secretary of state, Rex Tillerson, and his Federal Reserve Chair, Jerome Powell, largely because they looked the part. This time, he and his attorneys had more significant things to worry about. It was hardly akin to Larry David on the final episode of Curb Your Enthusiasm challenging one potential juror for wearing a string tie and another because she had “big hair like Kellyanne Conway.”

Of course, Trump would have favored a Kellyanne-type on the jury — he didn’t get one that I could see — but not someone who resembled her ex-husband, George [Conway], who is covering the trial for The Atlantic. George Conway, who split with Trump in 2017 and with Kellyanne after her book came out in 2022, joined me for an amiable lunch at a greasy spoon near the courthouse. We agree on almost everything about Trump and the threat he poses to the American republic and to the world but diverged on the excitement of the first two days of the trial. I’m loving it, and despite having to get up at 5:15 a.m. every day to catch the train from New Jersey, I have been fully alert throughout. George said (and wrote) that, like Trump, he’s been catching some shut-eye.

After lunch, the pace quickened. Prospective juror B430 fell afoul of Trump’s jury consultants, who hit pay dirt when they researched her social media posts.

B430 is a longtime paralegal at a major law firm whose passion seems to be working in theater. In 2016, she was not just a “Bernie Gal” but a fierce Trump critic who posted that he was “a racist, sexist narcissist.”

“I wouldn’t believe Donald Trump if his tongue was notarized,” she wrote in a line that was often used about Trump in the 1980s and deserves to go viral now.

This week, I learned from my friend D.D. Guttenplan where that classic line comes from. In 1989, Leonard Stern, the wealthy owner of the Hartz Mountain pet supply company, financed a critical documentary about Trump’s bankruptcies and overall scumminess that I highly recommend for anyone interested in how he hasn’t changed at all. I was Newsweek’s media critic at the time and appeared in the film saying that Trump was not only not the biggest real estate developer in the U.S., as he claimed, but he wasn’t close to being the richest developer in New York. In some versions, there’s also a soundbite of me saying Trump was bull-shitting when he claimed Soviet Premier Mikhail Gorbachev was scheduled to visit him in Trump Tower.

After he saw a rough cut, narrated by Tony Schwartz, his onetime ghostwriter on The Art of the Deal, Trump played his usual hardball, threatening to sue me and other critics who appeared in the film. When Newsweek’s lawyer saw the letter from Trump’s attorney, she laughed it off with: “Join the club. It’s flattering. He’s threatened to sue practically everyone in New York and almost never follows through.” I learned from Guttenplan that around the same time, Trump made up a preposterous story about how Stern’s wife, Alison, had recently asked him on a date, and he’d turned her down.

When Guttenplan, then reporting for Newsday, asked the Sterns about Trump’s story, they adamantly denied it. However, they soon settled financially with Trump and, unfortunately, agreed to suppress the documentary before it aired. It didn’t air for 25 years. Guttenplan interviewed Alair Townsend, a former deputy mayor who had handled many negotiations with Trump, and she coined the immortal line about the notarized tongue.

Back to Juror B430, who went beyond the tongue line in 2016 and posted: “He is anathema to everything I was taught about love and Jesus. He could not be more fundamentally unchristian.” Now, just 12 feet from Trump, she claimed that during Covid, she decided to tone down her commentary and had not insulted him since. “Strong words. I was in a disturbed frame of mind during that election cycle. I do not hold those positions today.” She claimed to be impartial now and told Trump, sitting 12 feet away, “I’m sorry.”

This woman really wanted to serve. “I withdraw the term racist,” she said. “It’s not about me judging him ethically. His ethics are his personal business.”

The defense wanted the judge to dismiss her, saving them a preemptory challenge, which they had to use on potential jurors like the woman whose son worked for Hakeem Jeffries. After weighing the matter, Merchan concluded that while the matter of B430 was not the same as his dismissal of a juror on Tuesday for posting “Lock him up,” he had come to the same conclusion. “This is a close call. I could easily find that she is quite credible,” he said. “[But] I don’t believe we should take a chance with this juror.” The judge dismissed her for cause.

Trump didn’t do as well with Juror B500, a Black woman employed by an apparel company, who told the court that she didn’t have strong opinions about Trump and was sure she could be impartial but added, “I don't like his persona— how he presents himself in public.…He is selfish, self-serving and I don’t like him.…He’s not my cup of tea” She qualified that with, “I don’t like some of my coworkers, but I don’t try to sabotage their work,” which got some laughs and also indicated that she thought she could be fair.

Susan Necheles, one of Trump’s attorneys, said B500 should be dismissed by the judge for cause. This kicked off a fascinating debate I chronicled briefly in The New York Times over whether jurors can separate their personal feelings about the defendant from their commitment to be impartial and fair, which the judge said was more important.

Joshua Steinglass, for the prosecution, endorsed the judge’s view and said jurors had preconceived notions about, say skinheads, but that didn’t prevent them from being fair.

Necheles made a good point that with most criminal defendants, including sex offenders, it’s the crime, not the individual, that potential jurors are reacting to, and preconceived notions about the crime are perfectly fine. But in this case, it’s the person, Trump, not the crime, and B500’s views of Trump are current, not from the past.

The judge, stressing that B500 was convincing in saying that she could be impartial launched into remarks that were one part practical, one part legal principle. Preconceived notions about people were impossible to avoid, he said. “If we eliminated everybody with a preconceived idea, we would never have juries.” He denied the motion to dismiss the juror for cause.

The defense exercised preemptory challenges against B430 and nine others suspected of anti-Trump bias, including the wife of a lawyer who reviewed Maggie Haberman's critical book on Trump. (Necheles knew the woman slightly, and the couple spent the night at her house 15 years ago, which would have been problematic). So now Trump was out of challenges. B500 was seated as Juror 11.

Don’t be surprised to see Trump start wooing jurors individually as if it were part of his presidential campaign. It would be like him to crow on the stump about how much he loves charter schools because one juror teaches in one and champions great software because another is a software engineer. 

All Trump has to do for a mistrial is convince one out of 12 that he deserves yet another break. 

PREVIOUS POSTS:

Day One, April 15

Day Two, April 16