Will New York Jury Give Trump a Fair Shake?

The trial that ensues from the indictment sought by District Attorney Alvin Bragg and handed up by a Manhattan-based grand jury will be a homecoming of sorts for President Trump, who was born at Jamaica Hospital, Queens.It was the novelist Thomas Wolfe who popularized the phrase “you can’t go home again.” He used it as the title of his posthumously published classic, but in Mr. Trump’s case a better rendering might be that you are likely to find not a welcome mat but an unfriendly jury eager to convict. It raises a question both practical and constitutional: Can the former president get a fair trial in his hometown? A longtime lawyer, Harvey Silverglate, thinks not, telling the Sun that the indictment is a “bad idea” and that at least one member of the jury will engage in “jury nullification,” when a not-guilty verdict is given regardless of guilt or innocence. He predicts that prospective jurors “won’t be honest during voir dire, or the process of jury selection.” He adds that “people love to get on a high-profile jury.”Mr. Silverglate observed that were he representing Mr. Trump, he would request a “sequestered jury,” meaning one where the jurors are prohibited from gaining access to press reports during the course of the trial, even when they are off-duty. He muses that Mr. Trump’s team would love to hold the trial at “Tallahassee or Ames,” but that the case will likely end in a hung jury. The Constitution’s Sixth Amendment promises that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” The trial’s location is determined by the “nature and cause of the accusation.”If an alleged crime spanned a range of jurisdictions, the law allows that “any district in which such offense was begun, continued, or completed” is suitable for trial. This flexibility allows for “forum shopping,” or the effort to find the most hospitable terrain for a trial. Jury consultants have become de rigueur at high-profile trials, or those with deep-pocketed defendants. The right to an “impartial jury” is also linked to the Equal Protection and Due Process clauses of the 14th Amendment.The Supreme Court explains that impartiality requires the selection of a jury from “a representative cross section of the community” in which the trial is held. The jurors selected must be able to decide the case based on only the evidence presented.Mr. Trump’s lawyers are likely to study a line of Supreme Court cases holding that when the trial’s location has been so saturated by publicity as to preclude a fair trial, a change of venue is required. In Frank v. Mangum, from 1915, Justice Oliver Wendell Holmes Jr. wrote in dissent that “mob law does not become due process of law by securing the assent of a terrorized jury.” Leo Frank’s habeas petition was rebuffed, and he was later kidnapped and lynched.Forty-five years later, the Supreme Court ruled in Irvin v. Dowd that one trial venue in Indiana violated the Sixth Amendment when “widespread and inflammatory publicity” resulted in an atmosphere where a fair trial was impossible. Newspaper headlines from Vanderburgh County reported that “impartial jurors are hard to find.”Writing for the majority, Justice William Brennan took pains to note: “It is not required, however, that the jurors be totally ignorant of the facts and issues involved.” An important case “can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.” New York City is no stranger to high-profile changes in venue. In 1999 a student, Amadou Diallo, was shot 19 times by four plainclothes police officers, who were subsequently charged with second-degree murder. An appellate court decided that the officers could not get a fair trial at the Bronx, and ordered the proceedings moved to Albany. The officers were acquitted. The question of whether Mr. Trump can get a fair hearing at Gotham has surfaced before. In the criminal trial last year centered on financial fraud within the Trump Organization, New York state’s lead prosecutor, Susan Hoffinger, told the presiding judge, “If we were to strike every juror who had a negative opinion about Donald Trump, we wouldn’t be able to get a jury at all.”At least one local official is eager to change that. The Rensselaer County executive, Steven McLaughlin, a Republican, tweeted: “The Rensselaer County Court House should be considered as a potential site for an upcoming trial” of Mr. Trump if a “change of venue is granted.” The county went for Mr. Trump in 2016, and President Biden in 2020. Mr. McLaughlin has himself been acquitted on charges of campaign finance violations. Mr. Trump’s attorneys are likely to point out that New York last voted for a Republican for president in 1988, and that Mr. Biden won nearly 87 percent of the New York City vote in 2020. Mr. Trump once said, “I could stand in the middle of Fifth Avenue and shoot somebody and wouldn’t lose any voters, okay?” Now, potentially, some of those pedestrians are set to determine his liberty to stand anywhere but behind bars.

Will New York Jury Give Trump a Fair Shake?

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