First, for those who have been wondering (from yesterday’s post), how to access Ori Soltes’ presentation for the Haberman Institute from Wednesday night, you have come to the right place.

Secondly, the Trump jury. I, like most, thought that the jury selection process for the Trump “hush money” trial would take weeks and weeks. But, lo and behold, it looks like the jury will be seated within about a week of the beginning of voir dire.

Now this works both ways. On the one hand, it seems to mean that the trial will be held in a very efficient and time sensitive manner. On the other hand, since it is important for the prosecution to have a jury where not one person would be a hold out from a guilty decision (assuming the evidence supports guilt), nothing can be more fatal (is that even a term – more fatal?) than selecting jurors quickly without sufficient vetting. And it appears this is what might be happening.

From what I understand, two things: First, jurors with a history of possible bias are being selected – one juror, for example, listens to CNN, one reads the New York Times, one has an account on Truth Social, etc. Recognizing that it is undoubtedly difficult to find potential responsible jurors in Manhattan who don’t pay attention to the news, it is important, I think, to note that the playing field is not level. By that, I mean that, from the perspective of a prosecutor, you need a vote of 12 out of 12 to convict. All you need is one hold-out, one person for whom you thought wrongly that their potential bias would not control their thinking, and you have lost the case. From the perspective of the defense, it is much simpler – you can make 11 mistakes in jury selection, and still be found not guilty, or have a mistrial declared.

Second, I understand that, although it was determined that jurors’ identities would remain secret, this may not be the case. This is because the voir dire is very detailed, and will be part of the public record. And already people who have been questioned for jury duty, or even selected, have been identified by some in the media, and undoubtedly by others who may have nefarious aims.

And that category might include the defendant himself and undoubtedly would include his followers. The idea that this jury trial could continue without jury intimidation is undoubtedly fantasy.

And if Trump or those working for Trump or under his control are involved, we will have violations of the gag order. What will the judge do, and how will that affect the trial? And the presidential campaign?

Is it possible for the Court to select a jury that may be biased, but that, nonetheless will cast their votes based on the evidence and not on their biases? Of course it’s possible, but in this case may not be likely.

My one experience:

Many years ago, in law school, I participated in a mock trial. We had to present a real case to a volunteer jury. We had the record of the case, the trial transcript and, I think copies of all motions and depositions. We had students playing the role of all the witnesses and the defendant. I do not think we were told how the case was actually decided.

We were of course in New Haven. The case, a rape case, involved a well known local gangster from West Haven. Our volunteer jury was made of women who were all members of a local social club. I was one of two lawyers representing the defendant.

In order to make the case as real as possible, we decided not to change any of the names.

That was a big mistake. My co-counsel and I really felt good about the way we handled the case. It was perfectly clear that the prosecution had presented a weak case. Their witnesses were not as convincing as ours, and their only evidence was circumstantial at best. So we were shocked when the jury came back: “Guilty”

We asked the jury why they voted as they did. And the answer was they knew the defendant by name and therefore knew he must be guilty.

So….innocence or guilt according to the evidence turned out to be irrelevant, even though the jurors pledged to decide based on the evidence. It was their biases that controlled their votes.

This is why I worry if even one juror goes into this trial with a pro-Trump bias. And, although I don’t really care what happens to Trump in the case, I am concerned that an acquittal will help his campaign. And that I do care about.

As to the trial itself…..if Kafka were only alive.