Initial estimates that it would take weeks to seat a jury appear to have relied on a handful of mistaken assumptions.
Initial estimates that it would take weeks to seat a jury appear to have relied on a handful of mistaken assumptions.
M onday evening, after the first day’s slog of jury selection in former president Donald Trump’s so-called hush-money trial in Manhattan criminal court, it was being estimated that the process of finding twelve jurors and six alternates could take close to a month. But the pace picked up markedly Tuesday. By the end of the session, seven jurors had been seated.
Still needed are five additional jurors plus six alternate jurors. Judge Juan Merchan observed that at Tuesday’s rate — even with Wednesday being an off-day, as it is expected to be throughout the trial — the full jury of 18 could be selected by the end of this week.
Judge Merchan thus instructed the seven selected jurors to report back to court on Monday, April 22, when opening statements could commence.
That’s remarkable given that some in the Trump camp believed it would take until about May 2 before we’d get to openings and the presentation of the first witness(es). That estimate appears to have been based on a couple of mistaken assumptions.
First, Monday’s glacial session is probably not representative of what the rest of voir dire will be like: It was consumed by a half-day of legal argument before the first wave of 96 prospective jurors made their way into the courtroom after lunch; that wave, moreover, may have had a peculiarly large number of people who said they could not serve for various reasons (mostly that they could not be fair or had work commitments that would not allow for an estimated six weeks of jury duty). As tends to happen, on the second day the process was more efficient and stayed on task — all jury selection, with little legal jousting.
Second, some trial participants seemed to think that the trial would adjourn after this Friday (April 19) until next Thursday morning (April 25) — i.e., there would be no sessions on Monday and Tuesday (April 22 and 23) due to the Passover observance. It appears, however, that those will be half-days, not off-days.
This, by the way, led to a foolish outburst by Team Trump — and not the first one (I’ll address that in a separate post). Trump lawyer Alina Habba (who in this trial, unlike the second E. Jean Carroll civil trial, seems to be more a PR flack than a laboring oar) publicly claimed that Merchan would “not allow” Jewish participants in the trial (including prospective jurors) to “observe Passover.” Given her track record (see, e.g., here), I’m sure you’ll be stunned to learn that Habba was (to be charitable) wrong. Indeed, Merchan assured jurors that the trial would not interfere with anyone’s religious observances. Nevertheless, he does not believe that necessarily requires full days off next week. Passover begins at sundown Monday, so the judge has indicated that court will be in session for at least half a day. Perhaps that will be the case Tuesday, as well — I assume it will depend on the observance preferences of individual Jewish trial participants.
In any event, New York’s procedure for jury selection can lend itself to rapid completion once it gets rolling, if the judge is efficient and determined to move through it, as Merchan clearly is.
Basically, it goes like this. The prospective jurors are interviewed (using the questionnaire approved by the court prior to trial) in the random order in which they are called from the pool. If that interview provides a basis to challenge for cause, the prospective juror is excused. If it does not, then the parties are given the opportunity to exercise one of their peremptory challenges — with prosecutors going first. If neither exercises a such a challenge, then the person is seated on the jury. (There is some leeway in the rules — under §270.15 — for the defense to exercise a peremptory challenge against the juror at a later point, but the state is explicitly deemed to waive the right to challenge a juror once it has opted not to challenge that juror earlier in the process.)
This early strike method discourages the use of peremptory challenges: Lawyers who risk challenging a juror are in the blind regarding who from the panel will be randomly selected to replace that juror; the replacement could easily be someone who, from that side’s perspective, is worse. A hypothetical example: Trump’s lawyers might not be crazy about, say, a young, married physical therapist who lives in SoHo and works at Mount Sinai Hospital, but if she seemed reasonably open-minded and well-grounded in answering questions, it would still be better to keep her; after all, if they struck her, she could be replaced by, say, a poli-sci prof from Columbia.
Furthermore, as the process moves along, and the peremptory challenges dwindle, the incentive not to use them increases. The tendency is to reserve the last one or two peremptories just in case, the way the random selection unfolds, the lawyers end up needing to strike a prospective juror who seems terrible for their side. Good trial lawyers are confident that they can persuade reasonable people, even those who aren’t their ideal jurors; they don’t use a last challenge in the crap-shoot hope of finding that perfect juror — they know it’s at least equally likely that they’ll land the other side’s perfect juror.
This peremptory-strike process continues until twelve people have been seated. That group becomes the jury, with the first selected serving as the foreman. Then the process is repeated until the alternates — in this case, six of them, the maximum allowable — are similarly seated. At that point, the selection process is over, even if the parties have not exercised all of their peremptory challenges.
In federal court, where judges have more discretion, I have been in many trials in which the selection process took a long time because a different method was used. In that method, before any peremptory strikes, the court would qualify enough jurors to seat twelve for the jury plus six alternates, even if the parties used all their peremptories — so here, it would call for qualifying a pool of 38 jurors before beginning the peremptory strikes. This takes longer because more jurors must be qualified and more challenges are likely to be used. Many lawyers like it, though: Since they’ve interviewed the entire pool, they know who the potential replacements are when weighing whether to exercise a peremptory challenge. I have never picked a jury in New York State criminal court; when I heard the initial estimates of that the selection process could take weeks, I assumed they must be using this sort of method. But Merchan is using the early strike system, and the result is that jury-selection will be completed much more quickly.
Now it could be that Tuesday was just a lucky day in terms of getting prospective jurors qualified and getting the number seated up to seven, Maybe when jury selection resumes tomorrow (Thursday), the process will bog down again. I doubt it, though. The pace of jury selection tends to accelerate once the parties get into a rhythm.
Which means it’s probably not too ambitious to anticipate that we’ll have a jury by Friday afternoon, and opening statements on Monday.