With jury selection now underway in People of the State of New York v. Donald Trump, the skill, wisdom, decisiveness and patience of the trial judge, New York Supreme Court Justice Juan Merchan, are on trial along with defendant Trump.
Here are two immediate ways the judge will be tested: the questions of 1) who will truly be the boss in the courtroom; and 2) whether Trump will find a juror willing to vote to acquit him no matter how strong the evidence is regarding his attempted election interference.
As to the first question, trials often involve lawyers battling with judges for control of the courtroom. A trial lawyer wants the jury looking to him or her as the one in charge, the one to rely upon.
This case is different. The war will be between the judge and Donald Trump. From the get-go, the former president will probe for weakness. He wants the jury looking at him.
We can expect an audible running commentary from Trump, all day every day. (If he doesn't keep dozing off.) You can easily imagine the types of things he’ll say with the jury pool present.
“Witch hunt!”
“I'm only on trial because a Democrat prosecutor wants me off the campaign trail.”
“None of us should be here today.”
“You can see this judge is a Trump-hater. His daughter works for Democrats, and so does he.”
These attacks on the court and the process will escalate until they are stopped. Judge Merchan has a plan, rest assured. He understands that Trump will test him, hoping to bait him into overreaction.
Trump figures he wins either way — judicial inaction allows him to send his messages to the jury. Being treated firmly allows him to keep posturing as a victim for his voters. The court is between the rock of wielding firm control and the hard place of seeking to mute Trump without amplifying his claims of martyrdom.
Like any good lawyer, Merchan must patiently build his case. He’ll start with warnings. When they fail, he must gradually ratchet up the consequences.
Journalists will eagerly report every one of Trump’s violations of courtroom decorum. Eventually, the sensible majority of Americans will understand that Merchan has no choice but to increase sanctions to avoid a mockery of justice.
Merchan can levy financial fines against Trump, and even against his lawyers if, after being warned, they fail to quiet him. Such fines can continue to multiply until they hurt.
If Trump continues to misbehave, Merchan can threaten to remove him from the courtroom to a separate room with a video feed and one of his lawyers present. This judge is highly experienced, and will understand that for justice to occur, the jury must see that he, not Trump, is master of the courtroom.
The second way in which Merchan’s dexterity will be tried involves jury selection. As trial lawyers know, it can be make-or-break between winning and losing. For Trump, the best route to winning is getting a clandestine Trump cultist placed on the jury, ready and willing to hang it.
The legal test to qualify for jury duty is whether one can make fair-minded determinations based solely on the evidence presented in court. The judge’s task will be to separate impartial-juror wheat from sleeper-cell chaff.
The process involves potential jurors being sworn, with the judge and the lawyers exploring what they know of the case and whether they’re willing to put aside preconceptions, opinions and bias. (Meanwhile, lawyers use leading questions to educate the entire jury pool about their theory of the case.)
Jurors will answer a questionnaire, asking questions ranging from "Have you ever served on a jury before?" to "Have you ever attended a rally or campaign event for Donald Trump . . . or for any anti-Trump group or organization?" The judge will excuse citizens who say they cannot be fair, or if, despite asserting fairness, their answers strongly imply the opposite.
For prospective jurors who remain, it’s the in-person follow-up questions that determine who is empaneled and who will be excused. The parties each get 10 “peremptory challenges” – the right to dismiss potential jurors just because lawyers’ experience and antennae tell them that the person might be leaning against their side.
Those “peremptory challenges” can be spent quickly. Before using them, lawyers often ask the judge to excuse a prospective juror “for cause” when they sense someone leans the other way, asserting that the juror cannot be impartial. During this process, Merchan will face difficult decisions.
Here's how it might play out — hypothetically, of course:
Prosecutor to potential juror: What do you know about the case?
Juror: Didn’t Trump have some kind of affair?
Prosecutor: Maybe. What would you think about that?
Juror: No big deal.
Prosecutor: Even if he’s a candidate for president?
Juror: Doesn’t matter.
Prosecutor: What if, just before the election, he paid off his sex partner to keep her quiet?
Juror: That’s not illegal, is it?
Prosecutor: What if he won the election, and then falsified his business records to keep the payments secret?
Juror: Doesn’t sound too serious. But if the judge told me that’s a crime, I’d try to follow the law. . . I mean, yeah, I'd follow the law.
To save a peremptory challenge, the prosecutor might ask the judge to remove that potential juror for expressing doubt about his ability to follow the law. And from the prosecution’s perspective, the juror seemed disinclined to credit the seriousness of Trump falsifying business records to cover up his 2016 election interference.
At the same time, Merchan knows that if he excuses that juror and then Trump is convicted, Trump could later claim on appeal that his right to a fair trial had been prejudiced. But the judge also knows that trial courts have broad discretion in such matters and their decisions are rarely reversed.
Now take this possible scenario:
Trump lawyer: Juror no. 3, you said you watch MSNBC, and follow Laurence Tribe on Twitter, correct?
Juror: Yes, mainly to find out what liberals are saying. I judge for myself.
Lawyer: Can you be fair to my client?
Juror: Absolutely.
Lawyer: How can we be assured of that?
Juror: I watch "Law and Order.”
Trump’s lawyer asks the judge to excuse the person on grounds of political bias. The prosecutor disagrees: The juror said she could be fair. The judge buys that; afterall, jury selection has gone on for days on end, and he wants to start the trial. If Trump’s lawyers have a peremptory challenge left, of course, they can strike that juror anyway.
Judge Merchan has tried hundreds of cases and is sure-footed. But he’ll definitely earn his salary this time.
