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NEW YORK — When the first batch of potential jurors was brought in for Donald Trump’s criminal trial this week, all the lawyers had to go on to size them up — at first — were their names and the answers they gave in court to a set of screening questions.
Then the lawyers went to work, scouring social media for posts that might reveal whether people in the jury pool had hidden biases or extreme views.
One potential juror was dismissed by the judge after the former president’s lawyers found a 2017 online post about Trump that said “Lock him up!” Trump’s lawyers rejected another potential juror after discovering she had posted a video of New Yorkers celebrating President Joe Biden’s election win.
It’s all part of an effort by both sides to get a competent jury that — just maybe — might slant slightly in their favor.
Even experts in the art of jury selection say there are limits to what any lawyer can do.
“We never pick a jury. We unpick jurors,” said Tama Kudman, a veteran West Palm Beach, Florida, criminal defense lawyer who also practices in New Jersey and New York.
“We never get who we want. We are just careful to get rid of who we think are dangerous to our clients,” she said. “You know you’ve picked a good jury when nobody’s happy. The prosecution hasn’t gotten who they want. The defense hasn’t gotten who they want. But everybody’s kind of gotten rid of the people who really raise the hair on the back of our neck.”
Jury selection in Trump’s trial resumes Thursday. So far, seven jurors have been chosen for the trial over allegations that Trump falsified business records to cover up a sex scandal during his 2016 campaign. Ultimately, 12 jurors will determine the verdict, with six alternates on standby.
Nearly 200 potential jurors have been brought in so far. All potential jurors will be asked whether they can serve and be fair and impartial. Those who have said “no” so far have all been sent home.
Lawyers on both sides then comb through answers prospective jurors provide orally in court to a set of 42 questions that probe whether they have been part of various extremist groups, have attended pro- or anti-Trump rallies, or have been involved with Trump’s political campaigns, among other things.
The judge can dismiss people that don’t seem likely to be impartial. Under state law, each side also gets to “strike” up to 10 potential jurors they don’t like.
A jury consultant has helped Trump’s lawyers research the backgrounds of prospective jurors whose names are provided to lawyers on both sides, but not to the public.
Jo-Ellan Dimitrius, a jury consultant who worked on the O.J. Simpson trial team in the mid-1990s and remains employed in that capacity today, said a social media check has become critical in recent years. She likened it to a “juror polygraph” that can reveal whether a potential juror’s answers to questions in court are false.
Still, Dimitrius said, such checks aren’t foolproof. Potential jurors can scrub their online footprint before they show up or make their social media accounts private.
Some people considered but not selected for Trump’s jury had things on their social media that looked problematic. Some had shared inflammatory posts, including a meme showing Trump beheaded.
In each case, the person was brought into the courtroom alone to confirm the posts indeed appeared or originated on their account — and, in one case, the account of a spouse. They were asked again about their feelings about Trump and whether they could act impartially.
A bookseller who’d previously declined to share his feelings about the former president admitted to holding a “highly unfavorable overall impression” of him after being confronted by a series of Facebook posts, including a video mocking Trump.
In those cases, the judge agreed with Trump’s attorneys that the prospective jurors should be dismissed with cause. But in other instances, Judge Juan M. Merchan said the posts did not rise to that level, forcing Trump’s attorneys to use their limited number of strikes to have the prospective jurors removed.
“The question is not whether someone agrees with your client politically or not, the question is whether or not they can be fair and impartial,” Merchan told Trump’s attorneys.
The process led Trump, the presumptive Republican nominee in this year’s presidential race, to say in a Truth Social post Wednesday that he thought strikes were supposed to be unlimited, not capped at 10, “as the Witch Hunt continues! ELECTION INTERFERENCE!”
Among six people struck by the Manhattan district attorney’s office was a prosecutor who works for the district attorney in the Bronx and a man who works in real estate and said he read Trump’s book, “The Art of the Deal.”
Perhaps the most memorable was a former corrections officer who said he may have once served on a jury for a case involving Trump and Merv Griffin. He was dismissed by prosecutors after acknowledging that he appreciated Trump’s style of humor.
That man had also expressed reservations about Trump, noting that he’d known relatives of the wrongly accused teenagers in the Central Park Five case — a group that Trump famously said should face the death penalty.
Sabrina Shroff, a criminal defense attorney, said she considers the jury selection process one of the “most stressful and fun” parts of any trial.
“It’s like setting up a blind date with 12 people and you’re hoping that the blind date is at least a friendship at the end. It’s such a roll of the dice,” she said.
Shroff said she goes by her gut when choosing jurors. Scrutinizing social media profiles, she said, can be challenging because what people put online “isn’t who they are.”
“Maybe their affiliations are telling,” she said. “You’re still guessing. We make the wrong call all the time. Sometimes, you really think the juror was pulling for you and then you find he was leading the charge to convict.”
Shroff added: “You’re always worried you have it wrong. You’ve misread the scowl or the smile. Maybe they aren’t smiling at you; just thinking about a movie they saw and liked.”
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