Published On: Mon, Oct 24th, 2022

Trump could testify in tax fraud trial of Trump organization. How to keep the jury unbiased.


Jury selection began Monday in the Manhattan district attorney’s prosecution of the Trump Organization for tax fraud. Allen Weisselberg, the company’s former chief financial officer, has already pleaded guilty to tax fraud charges himself.

Former President Donald Trump is not charged personally, but his family business faces charges of running a 15-year scheme to let executives avoid taxes by disguising part of their compensation. The first day of proceedings made clear that Trump and several of his children could be called as witnesses.  

It would be folly to search for only those odd jurors who held no strong opinions about Trump’s character.

Finding impartial jurors is likely to be difficult in a case where many if not most New Yorkers will have followed the story in the news and have strong feelings about Trump. Most New Yorkers will also have heard that Letitia James, the state attorney general, has filed civil charges against the Trump Organization on similar counts of financial fraud. Add to the mix that the House committee investigating the Jan. 6 Capitol insurrection has subpoenaed Trump for his involvement in allegedly fomenting the attack.  

While it’s a tall order to find the impartial jurors necessary to weigh the evidence in this case, it is not an insurmountable one. It would be a mistake to think that any jury would be irredeemably biased, so the outcome cannot be trusted, or that the methods used to screen out juries will allow for only the most ignorant to be involved.

The jury selection underway in Manhattan began with screening 132 jurors for bias. The trial judge may be tempted to eliminate anyone who acknowledges having formed some opinions before trial about Trump personally or the evidence reported in the media against the Trump Organization. After all, case law instructs judges to empanel jurors with “empty … minds” and “who do not know” anything about the parties or events on trial.

But it would be a fool’s errand to disqualify every prospective juror merely for being attentive to the news of the day. There would be precious little reason to trust the competency of a jury distinguished only by ignorance. It would be further folly to search for only those odd jurors who held no strong opinions about Trump’s character. This would be like searching for the proverbial needle in a haystack.

In practice, few trial judges demand the impossible of jurors. Instead, judges use a procedure known as voir dire to question jurors one by one about exactly what they know about the case beforehand. Judges don’t automatically disqualify persons who have followed the news. But they do carefully probe jurors to determine whether they still have an open mind about the events to be tried.    

It can be hard to get this balance right. In 2020, a federal appeals court threw out the death sentence of Dzhokhar Tsarnaev, the sole surviving Boston Marathon bomber, because the trial judge let jurors certify their own impartiality without sufficient examination of what possibly prejudicial pretrial publicity they had been exposed to. 

It doesn’t take a Ph.D. in psychology to recognize that persons can’t be trusted to certify their own impartiality. Some people might lie to get onto the jury. Others might be honest and yet blind to their own unconscious biases. This is why the appeals court ordered a do-over of the death penalty decision before a jury fully vetted for bias.

But in March, the Supreme Court reinstated Tsarnaev’s death sentence, arguably changing jury selection for the worse. The court rightly noted that the right to an impartial jury protected by the Sixth Amendment “does not require ignorance.” But in approving the trial judge’s flimsy voir dire of Tsarnaev’s death sentence jury, the court upset the sensible balance the appeals court struck between the need to ferret out bias with recognition that not all exposure to the news pollutes a potential juror’s impartiality.

There is no one-size-fits-all answer in this effort. Instead, the judge must examine each “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.” Recent trial outcomes indicate this can be accomplished.

In the Black Lives Matter era, we have seen several high-profile trials that challenged the search for impartial jurors. But by bringing into court a large pool of prospective jurors and by taking the time necessary to examine them one by one, judges managed to find fair and open-minded jurors in the trials surrounding George Floyd’s death in Minneapolis, Ahmaud Arbery’s death in Brunswick, Georgia, and the shooting by Kyle Rittenhouse in Kenosha, Wisconsin. 

It doesn’t take a Ph.D. in psychology to recognize that persons can’t be trusted to certify their own impartiality.

The Floyd and Arbery jurors properly convicted both men’s murderers on the strength of the evidence. The jury reasonably acquitted Rittenhouse after being given evidence that supported the defendant’s claim that he had shot in self-defense. The fact that different juries in different cases weighing different evidence sometimes convicted and sometimes acquitted is a sign that impartial justice is possible.   

More recently, the jury for the Marjory Stoneman High School shooting in Parkland, Florida, most likely felt intense community pressure to sentence Nicholas Cruz to death for killing 17 students in 2018. But given evidence of Cruz’s mental illness, three jurors apparently found sufficient mitigating circumstances to spare his life. (Under Florida law, the jury must be unanimous for a death sentence to be imposed.)

Reasonable people can disagree about whether the Parkland school killer deserved to be put to death. But the fact that jury selection produced a panel that represented different points of view even as it deliberated within the same county as the mass attack should be seen as a sign that the system worked; it produced the fairness that comes from diverse people deliberating together.

Just last week, a federal jury in Manhattan found actor Kevin Spacey not liable for battery, despite an avalanche of incendiary and negative publicity portraying Spacey as a serial predator and a poster child for #MeToo abuse. The Spacey jury may or may not have gotten to the truth — a difficult task when the allegations revolved around an encounter more than 36 years ago. But its verdict shows a proper appreciation of the difference between guilt in the media and guilt in a trial.

These were all cases that generated media coverage for years. Assuming only jurors with no prior knowledge of the case were needed to make a fair decision would have been ludicrous. And it’s not a standard that should be employed as jurors are vetted in the New York criminal trial of the Trump Organization.

It’s not that we should expect the selection process to produce a jury that is politically impartial when it comes to Donald Trump. That’s impossible, as there will no doubt be pro- and anti-Trump jurors. But it is possible to find jurors who put their obligations to the law above their political loyalties and what they’ve read in the press.  

What we should not expect is the impossible and the indefensible — jurors whose only questionable qualification is their ignorance of events every attentive citizen should know about.



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