By Donald Trump has spent years alleging that the justice system has been weaponized against him. And the opening of his Manhattan criminal trial Monday quickly spawned a related talking point.
New York Supreme Court Justice Juan Merchan asked the first 96 prospective jurors to indicate if they couldn’t be fair and impartial in the case. Half of them were dismissed after raising their hands.
Trump soon promoted the Fox News commentary of former Justice Department official and Trump administration appointee John Yoo, who called it “pretty extraordinary” that “half of the jury pool already says they’re so biased against President Trump that they can’t serve on the jury.” Trump allies on social media promoted the clip and extensively echoed the talking point. The idea is that Trump can’t get a fair trial in a locale where just 12 percent of voters supported him in 2020, and that this development laid that fact bare.
But the prospective jurors didn’t actually say they were biased against Trump. And while the situation is certainly extraordinary, it wasn’t necessarily so for the reasons Trump allies have claimed.
Contrary to Yoo’s claim and some characterizations, the question was broadly about whether prospective jurors could be fair and impartial in the case, which could logically include being biased in Trump’s favor or other factors. Merchan laid out extensive criteria for a fair juror, saying one must also not harbor prejudices toward potential witnesses or prejudge the facts of the case.
Given the makeup of Manhattan, it’s perhaps fair to assume that a large number of those who raised their hands meant they were biased against Trump, but we can’t say that with certainty.
The question from there is how surprising and instructive this development is.
Some experts on jury selection say it’s not too surprising. But they also note that it’s difficult to say because it’s so unusual to begin a trial this way. While jurors are often asked if they can be fair and impartial, a “no” answer doesn’t generally lead to their immediate dismissal.
“It’s very common to ask potential jurors if they think they could be fair,” said Thomas Frampton, an expert on jury selection at the University of Virginia School of Law. “Though in an ordinary trial, there would be significant follow-up questioning by the judge or the parties (depending on the jurisdiction) to interrogate whether the juror is truly biased, whether they can put aside their preconceptions, and whether they would ultimately follow instructions.”
Nancy S. Marder, director of the Chicago-Kent College of Law’s Justice John Paul Stevens Jury Center, noted that such a question can provide jurors with an opt-out if they’ve decided they don’t want to serve on the case for other reasons.
“In some cases it could be that some prospective jurors do not want to sit on a six-week jury trial that will be in the public eye,” Marder said. “One anthropologist who had been called for jury duty in a high-profile case in New York once described what he saw as a ‘culture of excuses.’”
Jury bias expert Gregory Cusimano said Merchan’s chosen process provides “an easy way to avoid service.”
Of the jurors dismissed for claiming bias, more than two dozen appeared to be White women, 14 to be White men, one to be a Hispanic woman, four to be women of Asian descent, and one to be a man of Asian descent.
Atlanta defense lawyer Chris Timmons noted that the situation here is also unusual because of how divisive Trump is. But he said that “dismissing the jurors for cause without allowing the attorneys to attempt to rehabilitate them should actually speed the selection process,” which involves hundreds of prospective jurors and could take weeks.
Which brings us to a related point: What does it say about the Manhattan jury pool specifically that half would claim an inability to be fair and impartial?
The development is perhaps less surprising when you look at a national YouGov poll released Monday, in which 57 percent of Americans said they could be impartial jurors in the case, but 43 percent said they would not be (19 percent) or they weren’t sure (24 percent).
Passions about Trump also run high across the country. Polling has shown that as many as three-quarters of Americans have either “strongly favorable” or “strongly unfavorable” views about Trump.
This is also a case that has already garnered extensive media coverage. As many as half of Americans have already decided either that Trump broke the law or that he did “nothing wrong.” Just 19 percent told AP-NORC pollsters last week that they didn’t know enough to offer a judgment.
And that gets at the flip side of Trump and his allies’ complaints. While this could be read as a sign that the jury pool broadly may have lots of biases, the people who raised their hands claiming bias were also quickly excluded from serving as jurors.
“They might have such strong feelings because the defendant is in the public eye,” Marder said. “Or, it might be that New Yorkers are not afraid to express their strongly held views. But in either case, this is exactly what should happen.”