“I consider (trial by jury) as the only anchor, ever

yet imagined by man, by which a government can be

held to the principles of its constitution.”

Thomas Jefferson, 1789

 

Worried that juries will not have the courage to convict Donald Trump? Is MAGA World worried that “rigged” juries will convict their perfect genius? The suggestion within both questions is a concern that juries can’t be trusted to do the right thing in these ultra-high-profile cases. Virtually everyone who thoroughly follows these cases on their favorite cable news channels, podcasts, opinion pages or social media sites is already convinced that he is either guilty of something or innocent of everything. If these citizens become jurors, will they simply vote their grievances, prejudices, ideologies, or politics? If you’re asking yourself that question, you’re asking the wrong one. The question to ask is: will those people actually selected as jurors make an earnest effort to follow the evidence and the law? I’m reasonably confident they will, even if their verdicts turn out to be contrary to your preferences. My opinion is based on two grounds: the methodology of jury selection and the power of the juror’s oath.

I begin with a few general observations about jury duty that perhaps lead the public to skepticism about the trustworthiness of juries to decide the fate of rich, famous and powerful criminal defendants. Of course, we have to start with the circus trial of O.J. Simpson in 1995. In that state court, televised trial, the not-ready-for-prime-time prosecution, the unrelenting defense team and the feckless judge turned the trial into a written-for-Hollywood soap opera.[1] The Simpson trial was a case study in how not to conduct a high-profile trial. Most likely Trump’s first criminal trial, the January 6^th case in Washington D.C., will not be televised and will feature a respected, no-nonsense federal judge, a low-key but highly talented prosecution, and a defendant who dares not open his mouth for fear of committing perjury. Here are better examples that more directly apply to Trump’s upcoming trials. First, the case of Mafia boss John Gotti, Jr., convicted by a jury of murder, racketeering and obstruction. Second, the case of Paul Manafort, Trump’s 2016 campaign chairman, convicted by a jury for conspiracy against the United States and conspiracy to obstruct justice for attempting to tamper with witnesses. The work of the court and jury in Trump’s first criminal case should set the table for the three that follow, despite two of them being televised.[2]

 

A Judge’s View of Jury Duty

A skeptic’s definition of a juror is someone either not clever enough, or not well-connected enough to get out of jury duty.  Sadly, after years of qualifying citizens summoned for jury duty, my colleagues and I note there is a certain ring of truth in that tongue-in-cheek definition. At the start of my professional career in Orlando, Florida, in 1970, jurors were selected from voter rolls. Most employers voluntarily continued paying salaries and wages to their employees while they served on juries. Jurors were paid modest fees for their service. They were welcomed to courthouses as special guests. And wouldn’t you know it: turnout was high, they showed up dressed in their best daytime attire, and there was a widespread willingness to serve – some were even anxious to serve.

In 2018, when I observed my last jury selection in Fort Myers, Florida, things had changed, and I’m guessing that what I observed was happening all over the nation. Florida switched from using voter rolls to the Department of Motor Vehicles rolls,[3] which brought to the courthouse a new class of citizen: those anxious to drive but not necessarily anxious to vote, hence not necessarily interested in jury service. Over the decades since 1970, the rate of no-shows for jury duty has increased dramatically, employers are increasingly pressuring employees to avoid jury service, and respect for courts of law has degraded.^[4] Negative attitudes about jury service now abound, ranging from grumbling acceptance to rudely vocalized resistance. Typical excuses for escaping jury duty are: (1) they absolutely can’t miss even one day of work; (2) they’re caring for a disabled or dying relative; (3) there’s no one to watch the children after school; (4) they have medical conditions or physical idiosyncrasies which prevent them from serving; (5) they’re philosophically opposed to the concept of trial by jury; and (6) jury service is against their religion. Some of them do have genuine, disqualifying excuses. But when a guy dressed in a faded, ketchup-stained Miami Dolphins t-shirt, cut-off sweat-pants and flip flops walks in and claims that, without him at the job site, his construction company will lose a whole day of work and thousands of dollars? Well, we get a little skeptical.

That said, once the prejudiced, the scoffers, the weirdos and the liars are initially culled from the herd, what’s left is a pool of potential jurors composed of pretty decent citizens. Once a selected juror takes his or her oath and takes a seat in one of the comfortable chairs in the jury box, one can actually see a transformation taking place.

The Jury Selection Process

Jurors go through a process known as voir dire (vwär ˈdir), wherein several questions are posed to them by the judge and the lawyers touching upon their qualifications to serve. Voir dire readily exposes the culls (the aforementioned bigots, scoffers, weirdos and liars), and they’re quickly released to go back to their “indispensable” duties. Following voir dire, the lawyers use what are called challenges[5] to eliminate those whom they believe cannot be fair and impartial, or whom they believe will favor the opposition. The result is that each side gets rid of the other side’s favorite prospects, leaving behind those who seem to show little or no bias toward either side. Therefore, what is actually happening is not a selection process, but an un-selection process. Those left standing are generally people to whom neither the judge nor the lawyers can assign a reason to remove from the jury pool – and that’s not a bad thing.

 

Most of those “left standing” possess average-or-better common sense, do not hold rigid philosophical opinions on the laws applicable to the case, know little or nothing about the case, and have declared a sufficiently credible willingness to set aside any personal preferences and follow the evidence and the law. In my experience the education level of the majority who actually sit on juries is somewhere between high school graduate to some college. While somewhere around the national average of college graduates are summoned for jury duty, less than 10% actually make it to the jury box.[6] Many jurors are military veterans.[7] The rarest jurors we find are physicians, lawyers, retired judges, the very wealthy, and those who hold or have held high-profile public or private positions in the community. Although we don’t ask jurors to disclose their income, logically the vast majority earn under $100,000 per year. In other words, the juries I was most familiar with were mostly composed of working-class people, college students, homemakers, and retirees.

When a jury is finally selected and announced, judges will frequently hear sighs of relief or groans of disappointment. We might see fists pumping and handshakes of congratulation or commiseration. But once the unselected have left the courtroom, the jurors about to be sworn begin to display a new countenance, as one chosen to perform an important task of being responsible for what might be a life-changing moment in the life of a fellow citizen. They modestly display a sense of pride at being chosen, even if they came to the courthouse that morning hoping to be excused and sent home. I always explained to them that they have been given the rare opportunity to exercise a governmental power.

The Power of the Oath

When jurors raise their right hands and say “I do” or “I will” to the administration of the jurors’ oath – many of them swearing before God for the first time in their lives – I truly believe that a bond is forged between them. Indeed, these bonds vary in strength from juror to juror, but the vast majority of jurors I’ve seen at work take their oath seriously. Their bond is their common duty to render a verdict based solely on the evidence and the law, laws that admonish them to set aside, as best they can, their personal opinions and biases, use their common sense, decide what the true facts of the case are, apply the law to those facts, and render a true and just verdict.

After jurors hear all the evidence and receive their instructions on the law that they swore an oath to follow, they go back into the jury room. What happens next is up to them. In a criminal case, they sometimes take a vote right off the bat, especially if the evidence is overwhelming in favor of one side or the other. Usually they will discuss the evidence, and debate and argue over their individual impressions, positions and viewpoints. When they are settled on the facts, the law tells them what they must do,[8] and there’s your verdict. That’s how it usually works, and most of the time they make a good call.

In high-stakes criminal and civil trials, I always know the jury will take its job seriously and work diligently because substantial losses of liberty or financial livelihoods are at stake. What has never failed to amaze me is how seriously juries take even the most minor of cases. I remember one trial at which I felt embarrassed that I had to put the matter before the jury because I believed the case was trivial, spurious, and a waste of everyone’s time. Any minute I expected to have a juror ask “What in hell am I doing hearing this crappy little case?” The jury, nevertheless, paid attention, rendered a proper verdict and never once complained that it was forced to hear that crappy little case.

Not all juries were hunky dory. In one case my bailiff found out afterwards that the jury had reached a verdict, but first decided to order out for pizzas and sodas and kept everyone waiting on pins and needles for a couple of extra hours while jurors dined on the county’s dime. Sometimes jurors had heated quarrels, but never a physical fight. At the end of the day, I never had a juror tell anyone after the conclusion of their service that the jury system is a farce, a waste of time or that they would never want to serve again. Sometimes, jurors will actually exchange phone numbers and email addresses. Overall, the feedback was mostly positive and I believe they were proud to do their civic duty.

At the moment of taking a solemn oath, especially one ending with “so help me God,” a weighty sense of duty falls upon the oath taker to honor that oath. I believe that is especially true of jurors. When you watch a jury being sworn, it might appear to be just some pro forma part of the trial, but it’s a critical element of Jefferson’s “anchor holding government to the principles of its constitution.”

My Verdict on Juries

Having participated in hundreds of jury selection processes and witnessed hundreds of jury verdicts after hearing the same evidence the juries heard, I’ve repeatedly said that the collective wisdom and common sense of twelve ordinary citizens[9] usually produce fairer verdicts than those made by one judge.[10] Accordingly, I am convinced that a process in which a group of citizens who individually process the evidence during the trial, absorb the judge’s instructions on the law, and then go back to deliberate and reach a verdict, works as well or better than a bench trial (trial by judge alone) in as many as nine out of ten cases. In my thirty-four-year career on the bench, I can only recall four cases in which the jury’s verdict came as a complete shock to me.[11] Therefore, in about 98% of the cases, I either completely agreed with the jury or found there was enough evidence to support its verdict. Not bad work for ordinary citizens plucked at random from the community.

What About the Trump Factor?

Although a former president has never been indicted before, the crimes charged have previously been prosecuted in other unrelated cases and juries have reached just verdicts. The only X-factor is Trump’s status and the cult-like followers who continue to believe his lies, rally to his defense, and are already making threats meant to intimidate witnesses and prospective jurors. Despite that, I believe the courts in New York, Palm Beach County, Fulton County and Washington D.C., can produce jurors who can be faithful to their oaths and follow the evidence and the law – no matter where it leads them. Many juries in the past have done their duty under extreme pressures and performed well.[12] I’m confident they will pay serious attention to the presentation of evidence and try their best to apply their factual findings to the law.

Jury selection, naturally, will be critical. A prospective juror does not have to be completely without knowledge of the events in the case. The hard part will be to find people who do not already have an intractable opinion about his guilt or innocence. It will be difficult, but not impossible, for jurors to set aside their opinions and make a genuine effort to judge Trump fairly and legally. The issue is whether the judge can accurately and correctly assess prospective jurors’ sincerity and not let ringers with unlawful motives to slip through.

Because Trump’s defenses in all four cases seem pretty weak,[13] he has a huge uphill climb to convince all twelve jurors in all four juries to acquit him on all 91 counts he is currently facing.[14] Consequently, his best hope lies not with convincing all 48 jurors to acquit, but for at least one juror in each case to refuse to convict, thus leading to a hung jury and a mistrial. To that end, I’m pretty sure some people will lie in hopes of getting on the jury for that sole purpose. However, pretrial investigation of the venire (the list of people being summoned to jury duty) should be able to identify those prospective jurors who have already revealed their true colors. Ironic isn’t it that the people Trump wants the most on his juries are those who, through their openly transparent demonstrations of unconstrained fealty to him, have virtually no chance of getting there, and I’m confident the jury selection process will be able to uncover and excuse them. However, the same goes for those who can’t wait to see Trump in an orange jumpsuit. Neither group will survive the un-selection process.

Back to the original question: can we trust juries to do the right thing in Trump’s trials? I believe the answer is yes. I believe that once the very arduous process of jury selection yields twelve jurors, they will all take their oaths very seriously, and return a verdict that honestly represents their best efforts at judging the facts and following the law, whether it happens in New York, West Palm Beach, Washington D.C. or Atlanta.

 

Coming up: Thoughts on sentencing Trump if convicted in the January 6^th case

[1] In addition, many believe the verdict was fueled by passion over and retribution for the mindboggling acquittal of the obviously guilty white thugs who brutally battered a black man, Rodney King, vividly shown on videotape.

[2] By rule, the two trials in federal court will not be televised, unless Chief Justice Roberts allows it, which, at this juncture, he appears not inclined to do. New York and Georgia allow its state court trials to be televised, and they certainly will be.

[3] Using DMV rolls probably increased diversity participation in juries, but I’m sure there was a cost-saving motive involved also.

[4] One notable example is their manner of dress when they show up for jury duty. I’ve seen prospective jurors walk into my courtroom wearing what might have been the clothes they slept in the night before.

[5] There are two kinds: challenges “for cause” in which the lawyer must convince the judge with legal reasons for removing a potential juror (e.g., a close relationship with the defendant, or one of the lawyers, or a witness); the other is called “peremptory” challenge, whereby the lawyer can excuse a potential juror without having to give a reason. Each side has a limited number of peremptory challenges. There is no limit on challenges for cause.

[6] College graduates seem to possess more of that aforementioned cleverness or connectedness than do non-college graduates. As a result, the majority of college graduates who actually make it onto a jury are either retired or work for the government, especially school-teachers.

[7] As a rule, veterans, having once taken an oath to protect the Constitution, seem more amenable to their civic obligation to serve on juries than do non-veterans.

[8] In most jurisdictions today, juries are provided with a kind of decision tree that helps them apply the facts to the law. Moreover, the law is given to them in lay language and hard copies are provided to each juror.

[9] In Florida we use juries of six, except in capital murder and eminent domain cases, which use twelve jurors.

[10] There are exceptions, mostly in cases in which the evidence and law are very complex.

[11] Two criminal, two civil. I can count only one shocker from my private practice days.

[12] Can you imagine one lone judge named Aileen Cannon bench-trying Trump in the Mar-A-Lago documents case? She is far more likely to lean heavily in Trump’s favor than twelve citizens with varying preconceived notions about the ex-President. I believe a jury would give both the United States and Donald Trump a fair trial. At this point, I can’t say the same for Judge Cannon, given her proclivity to make easily reversible rulings in the service of the president who put her on the bench.

[13] Remember, Trump will not take the stand in his defense. His lawyers know he will commit perjury and face new indictments, and the lawyers themselves could also get into trouble for calling to the witness stand anyone whom they know in advance will commit perjury when testifying under oath.

[14] Because the one Florida case, the Mar-A-Lago case, is going to be tried in a Florida federal court, by federal rule there will be a jury of 12.