The process of selecting jurors and alternates for the criminal trial of Donald J. Trump, on charges related to allegedly falsified business records connected to a “hush money” payment, is highly unlikely to result in a jury that will weigh the evidence and render a verdict objectively, a legal expert has told The Epoch Times.
While some of the questions on the form directly address potential political biases and animosities on the part of respondents, it conspicuously fails to account for personal and political agendas that jurors are likely to bring with them into the courtroom, making a fair trial an impossibility.
That’s the view of Harvey Kushner—who has experience in some of the highest-profile cases in New York’s history.
He is chair of the criminal justice department at Long Island University in Brookville, New York, has worked with and trained federal law enforcement in anti-terrorism efforts, has provided expert testimony to the Department of Homeland Security and other federal entities, and has provided advice on voir-dire—the juror-vetting process—in high-profile cases.
“This was a monumental case to begin with. When you look at the issues that jury selection in Manhattan raises, I don’t think you can find such a case in the history of the country,” Mr. Kushner told The Epoch Times.
“This shouldn’t play a part, but if you look at the breakdown of Democrats to Republicans voting, New York City skews about 90 percent to 10 percent, or 80 percent to 20 percent at best,” he added.
Requests Shot Down
President Trump’s lawyers have repeatedly asked for a postponement of the trial because the prosecution withheld some 100,000 documents until late in the game making it impossible for them to review the evidence properly before the trial.They have also sought to have the trial moved to a different jurisdiction, in view of widespread adverse publicity and hostility to the GOP’s current front-runner in one of the staunchest Democrat strongholds in the country.
These efforts have met with failure, in the form of Judge Lizbeth Gonzalez’s April 8 decision upholding the April 15 start date, and Associate Justice Cynthia Kern’s April 9 ruling denying a request for an interim stay of the trial. Another delay attempt was rejected on April 12.
Hence, the trial looks set to begin as scheduled on Monday, as a selection of 12 jurors and six alternates from a pool of randomly summoned 500 prospective jurors gets underway.
The prosecution will take place under the auspices of a court system run by such powerful Democrats as Manhattan District Attorney Alvin Bragg and New York Attorney General Letitia James, who explicitly campaigned on a promise to hold President Trump to account for alleged shady dealings.
“If the case was brought in other parts of the country, the jury pool might be more impartial, but here in New York, given all that has happened with the district attorney, the state attorney general, and the judge himself, there’s nothing to compare this to. This is going to be fascinating,” Mr. Kushner said.
President Trump on Friday said jury selection “is largely luck. It depends who you get.”
“It’s very unfair that I’m having a trial there,” he said at a press conference at Mar-a-Lago, Florida.
What Juror Questionnaire Omits
After having excused jurors who have made arguments as to why they consider themselves ineligible to serve, Judge Merchan’s court will present the remaining prospective jurors with a questionnaire containing a reported 42 personal questions.Much of that form features rote questions about place of residence, occupation, marital status, hobbies, and any past jury service.
The questionnaire then asks respondents what publications they read regularly, and features a range of titles for them to check off, from left-leaning sources such as CNN and MSNBC to more conservative journals and channels including the New York Post, the Wall Street Journal, and Fox News. It inquires about respondents’ interest in podcasts and radio.
The form then asks whether respondents have been the victims of a crime, have relatives or connections in law enforcement, face any pending criminal case, and have political, moral, and/or religious beliefs that might get in the way of their fair and unbiased rendering of a verdict in the case at hand.
It explicitly asks for an assurance that the prospective jurors will make their decision without prejudice regarding race, gender, gender identity, religion, and other protected categories.
At this point, the questionnaire segues into an explicit interrogation as to whether respondents have worked for or attended rallies on behalf of President Trump or parties and organizations that oppose him, and whether they are or have been members of the QAnon Movement, the Proud Boys, Oathkeepers, Three Percenters, Boogaloo Boys, or Antifa.
The questionnaire continues: “Do you have any feelings or opinions about how Mr. Trump is being treated in this case?”
It also asks: “Can you give us your assurance that you will decide this case solely on the evidence you see and hear in this courtroom and the law as the judge gives it?”
It further inquires as to whether respondents have strong feelings about President Trump, given his current status as GOP front-runner, and whether they have read books or listened to podcasts by Michael Cohen and Mark Pomerantz.
For some, this might sound like a fairly exhaustive questionnaire addressing many if not all the bases for potential juror bias. But, in Mr. Kushner’s analysis, the form does not come close to achieving this goal.
There is no guarantee that jurors will answer any of these questions truthfully.
Another concern is that some jurors may participate in the trial with a view to seizing the media spotlight and securing lucrative book deals as insiders who played a direct role in such a consequential proceeding, Mr. Kushner said.
This is not a new issue in jurisprudence, but, given the sensational nature of People v. Trump, it is one that any vetting of potential jurors needs to address, he argued.
“If I were asking the questions, I’d want to rule out people who want to be there because of the nature of the case, who want to be a part of this because they’re thinking in terms of possibly becoming a celebrity and talking about the case,” said Mr. Kushner.
High-Profile Trials
The criminal trial will be the latest in a series of legal processes that have garnered worldwide attention as they have played out in New York’s courts.What sets this one apart from those of past years, Mr. Kushner noted, is the ubiquitous coverage that the matter has received in forums as varied as TikTok, X, Facebook, YouTube, streaming channels, and other platforms and media that were not around until recent years.
Thanks to the online buzz and 24/7 discussion and debate, many if most jurors are certain to enter the Manhattan courtroom with pre-formed opinions.
By way of comparison, Mr. Kushner recalled his direct personal involvement in the November 1998 case United States of America v. Osama Bin Laden et al., in which federal prosecutors indicted the terrorist leader and affiliates for their role in planning and organizing the bombings of U.S. embassies in Kenya and Tanzania.
Mr. Kushner has intimate knowledge of that case, having provided his expert opinion on how voir-dire in that case ought to proceed and how to ensure as fair a jury as possible.
He recalled his interactions with the defense team in that case and said that even back then, before the advent of all the social media that are now universal features of life, the question of how to ensure a disinterested and impartial jury in such a notorious case was on everyone’s mind.
“We were very much involved in the jury selection process: could we find 12 jurors and alternates who would render a fair verdict, given the publicity in that case? This trial now is 10 times greater, given the technology and the social media that are around today,” he said.
Mr. Kushner also played a role on behalf of survivors of the 1993 terrorist bombing of the World Trade Center who sued the Port Authority of New York and New Jersey.
There, too, serious doubts existed as to the possibility of impartial proceedings in a case that everyone in the city had heard about and had strong views on, he said.
The case of People v. Trump is, of course, quite different from prosecutions and lawsuits related to terrorism, but Mr. Kushner firmly believes that the likelihood of a fair trial is even dimmer now, given the ubiquity of social media and their tendency to encourage people to obsess about the proceedings even before they begin.
“If you’re looking for people who haven’t made up their minds, good luck. You can have the best jury consultants, but there’s no standard for what is happening in this case,” Mr. Kushner stated.
Neither Mr. Bragg’s office nor Ms. James’s office responded by press time to a request for comment.
