Day Two: It Isn't Easy Being Orange

Jury selection is often the most important part of any trial

Day Two of the Trump Trial was not only more significant than the plenty-eventful Day One; it may be the most important single day of the whole case. Why? More than half the jury was selected on Tuesday — faster than anyone expected.

Donald Trump has a hard row to hoe. In New York, all convictions and acquittals must be unanimous among the 12 jurors. After interviewing a couple of Trump’s former attorneys on background and seeing how many potential jurors checked NPR on the questionnaire as a major source of news, unanimous acquittal seems well nigh (I was always hoping to find a chance to use that phrase) impossible. There’s just too much evidence against him for members of the reality-based community (i.e., the jury) to ignore.

Conviction is much more likely, but a hung jury is also a distinct possibility. It only takes one stubborn juror to scotch the trial. Then a new trial would be scheduled for later this year, with Stormy Daniels playing the Bill Murray character in “Groundhog Day.”

As I wrote yesterday in my New York Times mini-column, it isn’t easy being orange in Manhattan. Judge Juan Merchan dismissed two jurors for cause — a guy with Land’s End on his resume for ending a 2017 Facebook post with “Lock him up” and a bookseller at Shakespeare and Co. on the Upper West Side for posting an AI-generated parody with Trump saying of himself, “I’m dumb as fuck.”

In the first round of jury selection, 50 out of 96 potential jurors volunteered before being questioned that they could not be fair and were excused. 

Others didn’t realize this until going over the questionnaire aloud with the judge and attorneys. A white woman from Harlem who works for Bloomingdale’s brought chuckles when she said she had previously had a “performance job” and liked going to clubs in her spare time. But she was excused after answering "yes" to question 34 of the juror questionnaire: 

“Do you have any strong opinions or firmly held beliefs about former President Donald Trump, or the fact that he is a current candidate for president that would interfere with your ability to be a fair and impartial juror?”

After she was dismissed, she was heard in the hallway saying, “I just couldn’t do it.”

Trump’s best bet so far was a bearded native Texan and golfer who watches Fox News and is a partner in an accounting firm. He said that in the accounting world, “a lot of people tend to slant Republican intellectually…so there could be some unconscious bias,” and added that his background from Texas could make him have bias, but he was “not sure.”

Judge Merchan told him, “We need an unequivocal assurance.” When the man acknowledged that “It’s probably going to be tough for me to be impartial,” the lawyers had a private sidebar with the judge, and he was excused.

The ones who stayed said they could put any personal and political feelings aside in the interest of fulfilling their duties as jurors. I believed them. They reminded me of why, despite the hours of waiting around, I have enjoyed my own experiences with jury duty. It’s inspiring. People generally do their best to be fair and stick to the evidence presented and to the judge’s instructions.

It was impossible to track which prospective jurors were dismissed by a preemptory challenge (each side has ten). But it’s a safe bet that the defense removed a woman who mentioned that she heard Trump “targeted some females,” and the prosecution didn’t want a man who said, “I have a lot of friends in law enforcement who are pro-Trump.” 

The six jurors selected so far are:

Juror 1: (under state law, the foreperson): Former waiter who is married and works in sales.

Juror 3: Young gay male Asian-American corporate lawyer.

Juror 5: Younger black woman who works as a teacher in a charter school.

Juror 6: Young woman software engineer for a big corporation.

Juror 7: Civil litigator who says he knows little about criminal law.

There’s a strong chance the six additional jurors and five or six alternates will be selected by the end of the week. 

Joshua Steinglass for the prosecution and Todd Blanche for the defense stressed different themes in their remarks to prospective jurors, which they will have to repeat to a new batch on Thursday.

Steinglass said he wasn’t looking for jurors “who have been living under a rock for their last eight years or the last thirty years.” This process, he stressed, “has nothing to do with your personal politics” or “what you think of Donald Trump.” He said it’s about not just whether jurors could be fair but whether “you can give assurance that you won’t speculate why it [the prosecution] hasn’t happened sooner.” Steinglass explained — and will again when he talks to a new batch of prospective jurors on Thursday — that several witnesses in the case have “some baggage,” including “a tabloid editor [David Pecker], an adult film star {Stephanie Clifford] and a witness who has pleaded guilty to lying to Congress [Michael Cohen].” Some have been granted immunity in exchange for their testimony. “You can take those factors into account, but [they cannot be] the only factors you should take into account.”

Steinglass then outlined hypotheticals we may hear in opening and closing statements. He asked prospective jurors to imagine Jack and Jill rob a bank together. At first, Jill denies even knowing Jack but then testifies against Jack. The jurors’ job, he said, is to “see how does that testimony fit with the others….Can you wait until you hear the rest of the evidence before you decide whether you believe someone?”

Trump glared at him when he asked the jury to consider the case of a husband who hires a hitman to kill his wife. Would they consider that “the husband may be as guilty as the person who pulled the trigger, even though he wasn’t there?…. Can you hold him [Trump] responsible for acts he didn’t do personally?” He added: “You’re gonna have to assess Mr. Trump’s intent.” If someone honks at you when you cross the street, he explained, they could be honking because they’re glad to see you — or honking to get you out of the way. His point was that he wanted jurors who appreciated context.

Steinglass previewed a concept we will likely hear a lot about in this trial: “Accessorial liability.” He ended, “Look at the defendant in the eye and ask yourself, if you find him guilty beyond a reasonable doubt, will you be able to render a verdict of guilty?”

Blanche told the panel that if selected, they were obliged to avoid drawing any conclusions about the defendant until they began their deliberations. He used almost all of his time to suss out potential jurors who might be not just Biden voters (nobody can be asked who they voted for) but unable to give Trump a fair shot or follow the judge’s instruction that they should draw no conclusions if he doesn’t take the stand. His manner is low-key and friendly, and he did a good job of eliciting answers and attitudes that helped him with preemptory challenges. One prospective juror told him, “It’s really the prosecutor who’s the one that has to present those facts and prove them, but as I said, he has the right not to say them.” Blanche said, “I don’t think I could have said it better myself.”

I’m ending with a Monday pool report from the camera position just outside the courtroom, where Trump usually stops to insult the judge and prosecutor. Millions of viewers see clips of his attacks, but they don’t hear the questions from the two pool reporters: 

He didn't answer any questions.

4/15/24 Press poolers asked:

• Where’s Melania?

• Were you napping?

• Will this case cost you the White House?

• Are you afraid of going to jail?

• Will you continue to speak out about the witnesses?

He did respond to: How's it going? Giving us the thumbs up.

I must make mention of the death of Ken Holtzman, one of my childhood heroes. Holtzman was a left-handed Jewish pitcher for the Chicago Cubs in the 1960s, while I was a left-handed eight-year-old Jewish pitcher in my backyard six blocks away. Today’s obit in the Times says, “Holtzman, as a Cub, and [Sandy] Koufax, with the Dodgers, faced each other once, at Wrigley Field in Chicago on Sept. 25, 1966.” I was there in the upper deck that day with my dad, and we watched Holtzman carry a no-hitter into the 9th inning before holding on to beat one of the greatest pitchers of all-time, also left-handed, also Jewish. I explain all of that in this piece in the Chicago Tribune and recount how the following year, I, yes, actually won a game for the Cubs.