If Donald Trump were to be put on trial anywhere in New York, the borough of Manhattan may be the worst place for the former president.
“Ask people in Manhattan today is he guilty of anything … I’d assume, 95 per cent of the people would say, well, of course he’s guilty,” said Mark Bederow, a criminal defence attorney and former New York City prosecutor.
This is the challenge now facing Trump as he seeks an impartial jury and fair trial in a Manhattan courtroom following his indictment by a Manhattan grand jury on charges relating to hush money payments made in 2016 to porn actress Stormy Daniels.
Although Trump spent almost 70 years of his life in New York City, and was himself a Manhattanite, his long time residency there hasn’t necessarily endeared him to his hometown.
If the 2020 presidential election results are any gauge of his popularity, the state itself was won by Joe Biden by little over 60 per cent, compared to the 38 per cent garnered by Trump.
But in Manhattan’s New York county, Trump was particularly unpopular and trounced, receiving just slightly over 12 per cent of the vote. (He got 27 per cent in his hometown of Queens.)
Trump himself has argued that in this case, the legal deck is stacked against him, posting on his Truth Social Thursday night that the indictment was brought on, in part, because “they know I cannot get a fair trial in New York!”
Legitimate argument
On this particular point, Matthew J. Galluzzo, a former prosecutor in the Manhattan district attorney’s office, believes Trump may have a legitimate argument; finding jurors who can put aside their personal animus against him may be difficult.
“In Manhattan there’s been so much publicity about this indictment, about this case, and there is so much vitriol toward him,” Galluzzo said. “He is not a popular person in Manhattan. You could imagine people wanting to convict him just because he is who he is, regardless of what the evidence is that comes down.”
Some of the Wall Street finance crowd could potentially be sympathetic jurors but jury pools in Manhattan often consist of lawyers, doctors, artists, or recent college graduates — jurors who would not be considered “Trump’s people,” Galluzzo said.
“I think it’s going to be extremely difficult to find 12 jurors willing to acquit,” he said.
Defendants can get their cases transferred from one county to another, Gallluzzo said, but it’s rare that such an application is granted by a judge. As well, deciding where in New York state may be fairer to Trump could also prove difficult.
“We’re supposed to look at the election results? We’re supposed to poll? I don’t really know how we can decide,” he said. “What is fair?”
With so much emotion tied to the former president, either for or against, “I think it’s hard to find an impartial jury on this planet, frankly,” Galluzzo said.
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The point of switching venues is to go to a different area where perhaps the jury pool is evened out, or at least it’s not as familiar with the case, Bederow said.
“And then enter Donald Trump. Where do you even go?”
Trial by judge?
Another option available for Trump is to have a bench trial — a trail by judge alone.
“I bet his lawyers would put serious thought into waiving a jury and putting this in the hands of a judge,” said Bederow in an interview before Trump was indicted. “Which, of course, would put the worst kind of pressure on any one individual that you can imagine.”
But Galluzzo said that the trick in bench trials is always being able to read the room.
“How’s the judge looking at my client, how is the judge talking about the case? Maybe they would try and gauge this judge and what they think a judge might do.”
Melissa Gomez, a jury consultant and president of Philadelphia-based MMG Jury Consulting, said while it will be challenging to get an impartial jury for Trump, she doesn’t believe it will be impossible.
But one of the concerns would be with those potential jurors who appear too eager to be part of the case and are answering questions in a way they hope will get them on the jury, she said.
“[Those who say] ‘Oh, yes, I can be fair and impartial. Oh, I can separate my political views from the evidence in this case.’ Saying all of the correct buzzwords,” Gomez said.
“As a person who’s picked a lot of juries, I am usually very skeptical. And I pay close attention to those jurors who seem to really want to be there.”
Gomez said for prosecution and defence, it’s not just asking the right questions to prospective jurors but trying to identify if there’s anything in their background or beliefs, or things they’ve said in public, that raises suspicions that they might want to have a “bigger impact” by making sure Trump is either convicted or acquitted.
For the defence, however, the onus will be on them not to say that no Democrats can be on the jury.
“It’s just not going to happen,” she said.
‘Detail-oriented people’
Instead, the defence needs to identify those people who they believe have the wherewithal to separate their emotion and their logic and identify those who seem to be looking at the case more emotionally, Gomez said.
“I would want to make sure we had detail-oriented people who work in thinking professions where they’re looking at information and evidence without emotion. And who seems to be just a very straight forward and not leading with emotion,” she said.
“Even the question of political orientation isn’t going to be the only factor,” Gomez said. For example, you may have a Democrat who doesn’t like Trump but distrusts the police more.
Galluzzo said that the defence, when making their pitch to the jury, should remind them that Manhattan District Attorney Alvin Bragg, a Democrat, has stressed that the case has nothing to do with political reasons, but is “about the rule of law.”
“Likewise, don’t convict for [Trump’s] politics. Don’t make a statement just because of who he is,” Galluzzo said. “What’s paramount importance is that we follow the law and treat people fairly legally, even if we don’t like them.“
U.S. attorney Norm Eisen, who was co-counsel for the House Judiciary Committee for Trump’s first impeachment trial, said based on his experience, juries have the ability to set aside their personal feelings and apply the law fairly to the evidence that’s put before them.
“My experience has been that they answer honestly, that ones who can’t put aside their biases, say so,” he said in an interview before the indicment.
“I think [the jury system is] one of the great institutions of American rule of law. And I have faith in it, including to resolve this case.”
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