Despite a feeling of one step forward and two steps back Thursday morning, the jury in the Manhattan District Attorney’s election interference case against Donald Trump is now complete, with only the selection of five alternates left to be done.
Some legal experts had predicted that jury selection could take weeks but my own view was that the experience of Judge Juan Merchan, as well as the prosecutors in the case, would likely make the process a quick one.
In part, that is due to the fact that state courts in large cities are far more adept at handling jury selection in high-profile cases than the federal courts with their more rarified atmosphere. But Merchan’s approach did cause some unforced errors which may repeat themselves and grow worse if not corrected.
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The two-steps-back snag was caused by the removal of two jurors after they had already been selected, which meant that the judge initially was satisfied that there was no reason to remove them and neither the prosecution nor defense had felt strongly enough about them to exercise any of their precious 10 peremptory strikes against them.
But the first juror reported to the court in the morning that she felt that enough identifiers had been reported that she felt she would be unable to be fair and unbiased.
The second juror had been summoned back to the court because the prosecution had apparently found information contradicting his representations about his past criminal record. This latter issue—a prospective juror’s dishonesty—is not something a court can do much to guard against. Either potential jurors fear making false statements, or they don’t. But the issue of the first juror being apparently worried about being identified is something well within the control of the court.
Judge Merchan appeared frustrated by the first juror’s dismissal which seemingly arose from reporting by a Fox News host broadcasting extensive details about each juror’s biographical data, including professions, areas of the city they live in and their news sources.
The jurors’ names were not revealed, which was consistent with Judge Merchan’s previous order to keep their identities non-public. Merchan essentially chastised the press in the room, telling them, “There’s a reason why this is an anonymous jury, and we’ve taken the measures we have taken,” adding, “It kind of defeats the purpose of that when so much information is put out there.”
He then told the press not to report on employment information that jurors had to disclose in answers to the jury questionnaire, including questions of, “Who is your current employer?” and, “Who was your prior employer?”
Merchan then proceeded to blunder into a First Amendment issue by telling the press that he was concerned about news outlets publishing physical descriptions of prospective or seated jurors, asking reporters to “simply apply common sense.” He criticized reporting on the physical descriptions of the jurors, saying that, “It serves no purpose.” This is obviously wrong given that reporting the diversity of the jury panel’s diversity in terms of gender, race, age and the like is an important part of the story.
To make Merchan’s lack of journalistic experience obvious he then directed the press “to refrain from writing about anything you observe with your eyes.” This last instruction seems a little bizarre; can they report only what they hear? Chalk it up to frustration but Merchan likely just bought himself some legal filings by news outlets who may seek to both clarify and challenge his orders.
Merchan is rightfully seeking to protect the jurors’ safety as well as the safety of others involved in the trial but the press is not to blame for his system of jury selection. By having the jurors questioned in open court—in full view of other jurors and the press—Merchan created a situation in which information that could have been more confidential was put on public display.
I have been in many trials where more personal inquiries of prospective jurors are made either at the bench, with the husher turned on, in the judge’s chambers, or even an empty jury room. In Trump’s case, where the amount of lawyers and Secret Service agents might have made bench conferences or even a jury room too crowded, Merchan might have used an adjoining courtroom to have more privacy for these inquiries.
But the best thing Merchan could have done and can still do to protect the jurors is to make his gag order on Trump expansive, clear, and strongly enforced. It is Trump’s unrestrained attacks on witnesses, the court, prosecutors and now the jury pool that create the danger for all in this case.
Prosecutors have renewed their motion for contempt against Trump’s continual reposting of Fox News stories, arguing he is violating the gag order and that the order, as written, includes a loophole for for the former president. Specifically, it states that Trump is banned from “making or directing others to make public statements” about jurors or prospective jurors.
But this prohibition is ambiguous as to his quoting what others have said, although his posts obviously violate the spirit of what Merchan is trying to do. The courts have been too hesitant about gagging Trump as they seem overly fearful about being seen as infringing his First Amendment rights, but even if a gag order is later found to be overbroad the consequence will have no effect upon the criminal trial or conviction.
A more effective gag order for Judge Merchan to impose would be to give a Will Smith-style directive to Trump to: “Keep my jurors (and trial) out of your mouth.” Merchan would also need to follow that up with strong and quick enforcement of any violations.
