Legal AF by MeidasTouch - Trump MUST MEET his Jury at Criminal Trial

Episode Date: April 12, 2024

Michael Popok, a NY trial lawyer, DEMYSTIFIES THE NY CRIMINAL JURY SELECTION PROCESS for next week’s Trump criminal trial giving you insider’s guide to how the 12 jurors are picked. He examines the role of the judge, the number of “strikes” each side get; who is picked as the foreperson and alternates, and why the trial will result in a mistrial if a juror gets sick or has to be excused AFTER deliberations start. Thanks to HIMS! Start your free online visit today at https://hims.com/legalaf for your personalized ED treatment options. Visit https://meidastouch.com for more! Join us on Patreon: patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

This NBA season, make every three pointer alley-oop and buzzer beater even more exciting with FanDuel. Download the app today to see why we're North America's number one sportsbook. 19 plus and physically located in Ontario. Gambling.com call 1-866-531-2600 or visit connectsontario.ca. Michael Popak with the Legal AF Hot Take. I thought this was a good time before the start of the Donald Trump criminal trial. First time of the former president or president start of the Donald Trump criminal trial. First time the former president

or president has ever been through a criminal trial to give you the mechanics for jury selection in New York from the perspective of a more than 30 year practitioner of law and trial law. I'm a national trial lawyer. I've tried over 30 cases to conclusion. I've got over a dozen jury trials, and I want to tell you all about jury selection under the arcane rules in New York that you can use as a viewer guide

Because it's starting next week whether Donald Trump and his lawyers like it or not I know they like losing at the appellate level to try to get a stay They're now 0 for 3 this week alone And I'm sure with one or two business days left before the jury actually comes down or potential jury actually comes down, they'll try more. Let me give you what's really gonna happen next week. How many jurors? What's the selection process? What's the role of a judge? Who goes first? What kind of questions are asked? And the like. Here we go. In New York, let's start at the top.

Ultimately, it's going to be a 12-person jury. Yes, the jury has to decide their verdict unanimously. So 12-0 is the burden on the prosecution. If one person holds out or votes for Donald Trump, he loses. Now, there have been over 30 jurors that have taken on Trump cases that he's lost all 30, 30-0, but let's stay with the facts. 12-person jury. There's up to six alternates who get to hear all the evidence but don't get to deliberate as long as the original 12, if you will, the gang of 12, holds together and are able to get to deliberation six or eight weeks from now. But there are up to six. Why up to six? Who decides

whether it's one, two, three, four, five, or six? Judge Mershon, the trial judge. The trial judge presiding has a lot of discretion when it comes to jury selection. In fact, in New York State courts, in criminal courts, the judge presides over the entire jury selection. In fact, in New York state courts, in criminal courts, the judge presides over the entire jury selection process. Not quite the same in civil cases that aren't relevant here, but he does. He will sit there and he will be a participant along with the prosecution and the defense team. The prosecution team, Alvin Bragg is the district attorney, but he will likely not be the lead trial lawyer for the case. It will be some combination, I believe, of Matt Colangelo and a couple of other people in

that office. On the Trump side, let's get ready to rumble. It's going to be Chris Keiss and or Todd Blanch, probably Todd Blanch lead lawyer along with Susan Necklace, who unsuccessfully defended Donald Trump's organization two years ago and got a 17-count felony conviction against the companies. But she's back. 12 person up to six. My guess is there'll be about six alternates given the length of the trial. How do they select? The first thing that happens is they bring down the panel. We call it a veneer, the jury veneer. If you get a jury notice and you're getting a jury notice from Monday in New York State Supreme Court criminal,

hmm, you may be, it's a chance, you may be sitting in on this trial. But he'll bring down, the judge will bring down a group probably 20, 30, 40 at a time. It depends how large that courtroom is that he's in. They'll seek the potential jury. The jury will be anonymous, not generally, not regularly, but because Judge Mershon, based on Donald Trump's lack of self-restraint, self-control, acting out, breach of gag orders, abuse and the like, has forfeited his right

to have any knowledge about the jury's name and address. Only his lawyers will know that. So, and we will not know who the jury is. The jury, a sketch artist won't be able to sketch them. Nothing, anonymous jury, just like the anonymous juries in the E. Jean Carroll case twice against Donald Trump, just like the anonymous jury that'll be held down in Georgia. Cause when you got Donald Trump as a defendant,

you got to protect the jury. Anonymous 12-person jury. First thing the judge is going to do is the judge is going to determine from his own questioning at the very beginning without the use of a questionnaire whether any person has a problem being a fair or an impartial juror in this case. It'll ask them to raise their hand. Is anybody here for any reason that can't be fair and impartial as a juror or has any other type of excuse? And the judge on its own without really doing much inquiry because he doesn't want to

poison or pollute the jury pool by asking these people questions and say, you know, they get up on a soapbox, start giving a speech against the prosecutor, against Donald Trump, or whatever, or Michael Cohen or whoever they attack. So he wants to insulate the jury from that. So he'll dismiss those people, first cut. Can't be fair and impartial. Ask him a little bit about it without getting into details. He'll lop that group off. Everybody moves up in the chairs.

Okay. As we try to get to 12, let's say there's 30, there's five people that raise their hands, boom, they're excused without further discussion. A couple of people have, you know people have their primary caregivers for somebody in their home, their working mothers that have to care for children. They're the primary breadwinner. They can't take six weeks out of their calendar four days a week. It's going to be a four day a week trial.

Boom, they're removed. Now you're left with, from that original let's say 30, you're left with 20. You got to get to 12. Now, there's a questionnaire that will be used, a 42 question questionnaire that primarily is developed in consultation with the lawyers by the judge and the last questions. They're not going to ask them what's their political party, but they're going to ask them things like, do you support QAnon? Do you support the Oath Keepers? Do you support the Proud Boys? It's ways of getting at somebody's political leading

that could affect their ability to be fair and impartial, at least for the lawyers to hear, right? They're not automatically excused, but they get to hear how these people's minds are put together. So you ask them questions like that. Where do you get your news from? Do you get it from social media? Do you get your news from? Do you get it from social media?

Do you get it from YouTube? Do you get it from mainstream media? Fox News, CNN, these are all proxies for trying to figure out a person. What's their makeup? What's their can? What's their psychology? What's their emotional state? You can, at least lawyers think they can.

I've picked many a jury, sometimes with a jury consultant, usually without, and you're looking for any little data point, any factoid, helps you determine whether you want that juror or you don't want that juror and why. So after they go through the 42 questionnaire, who's ever left standing, let's say a couple drop off like flies through the questionnaire process or the judge dismisses them. Now you're down to let's say 18 out of that original 30 in my example. Now the two sides take turns. First you're picking the jury, the actual jury, then you're picking the alternates. The process is the same, but it's done compartmentalized. Let's start with this process we call voir dire. Let's start with this process we call voir dire. Voir dire, V-O-I-R-D-I-R-E, voir dire. It's the jury selection process.

Prosecutor goes first and they get to ask questions. They can ask group questions. Who here, raise your hands, has ever been to a political rally? Who here owns something in their home that has Trump or Make America Great written on it. Raise your hands. And then his assistant, that lawyer's taking down notes

on a big chart. I'll come up there with a big chart. My team will take notes on computer, but I'll have an actual big piece of, thumbs up on that, big piece of Oat-oat tag, and I'll write my notes about with big boxes with a little schematic of the jury box and I'll label next to it because of course I'll know the names and the basic information, your name, rank, and serial

number of each juror, where they live, what's their age, their profession by this point, and the like. And I'll say number two, okay, and I'll take notes on the chart. You can also ask the prosecution and the defense specific questions. Number six, was it Mr. Jones, Mr. Garcia, Miss Calabria, Mrs. Goldberg, and you'll ask specific questions based on their answers to the questionnaire or other things. Try to kind of ferret out. Again, you got to be careful you don't pollute the entire jury pool with your questions because you don't know exactly how they're going to answer those questions. So you ask specific questions. Under the rules in New York, the consolidated penal law, 270.1, each side is allowed to have a full and fair opportunity to question prospective jurors about anything that wasn't obvious before. You get a full and fair opportunity

to do that. And Judge Murchon presides over that. He determines how much leeway he's going to give the lawyers. And my guess is, despite him being frequently attacked by Donald Trump and his lawyers, because of the notoriety of the case, because of who the defendant is, because of the charges and all that, he's going to give the lawyers a lot of time for this voir dire question asking process of prospective jurors. It's going to be on the long side, not on the short side. I still think the jury gets picked in the first week. I don't think it gets done much quicker than that. Federal court goes a lot quicker just for those that are court watchers, court lovers. Federal voir dire jury selection process goes quicker. Judges

handle most of it, right? Vois dire is very short and you can get a jury picked within two or three days. State court New York, longer voir dire process, more role for the lawyers to handle the voir dire and get to the bottom and have a full and fair opportunity to ask their questions, judge presides. That's the big difference between state and federal court, criminal and civil, in picking a jury. So after the prosecution asked all of its questions, we haven't yet picked our jury, then the defense goes and they get to do the same exact thing. Group questions and specific questions of jurors, right? And what you're trying to do in voir dire in state court anyway, federal doesn't really work,

is you're almost trying to present your case. It's almost like the beginnings of your opening statement. That's why in the voir dire process, we may learn whether Donald Trump is gonna take the stand or not. Now they may have a placeholder for that. I am sure we're going to here. Do you understand that if my client, this will be from Todd Blanch or from Susan Necklis for Donald Trump, do you understand

that a criminal defendant does not have to take the stand in his own defense if the burden is on the prosecution? And if my client, Mr. Trump, President Trump, whatever they call him, they'll work that out in advance. Doesn't take the stand. You can't hold that against them under our system of justice. Do you understand that? Does anybody have a problem with that? That doesn't mean that Donald Trump's not gonna ultimately take the stand

or that decision's been made. I don't think they announced that. I think they still hold that in reserve, but I am sure you'll hear that as a voir dire question by the defense. We may hear more that indicates, wait a minute, he may really be testifying, or he's definitely not testifying. And we'll report it here on Legal AF and on the Midas Touch Network.

Sick of the one size fits all method, especially when it comes to your erectile dysfunction treatment? Well, good news. Now you've got options with HIMS. HIMS is changing men's healthcare by providing access to affordable sexual health treatments from the comfort of your couch. HIMS provides access to doctor-trusted ED treatment options such as chewable hard mints, brand-name treatments like Viagra, or generic alternatives are up to 95% cheaper. The process is simple and 100% online. No uncomfortable doctor's visits. Answer a series of questions on their site and a medical provider will determine

the right treatment option. If prescribed, your medication ships to you for free. No insurance is needed. If ED is getting you down, it's time you join the hundreds of thousands of trusted HIMSS subscribers and get treated. Start your free online visit today at himss.com slash LegalAF.

That's H-I-M-S.com slash Legal AF for your personalized ED treatment options. HIMS.com slash Legal AF. Hard mints are chewable compounded products which are not approved by or verified for safety or effectiveness by the FDA. Prescriptions require an online consultation with a healthcare provider who will determine

if appropriate. Restrictions apply. See website for details and important safety information. Subscription is required. Price varies based on product and subscription plan. So now you've got the first round of question asking by the lawyers, back and forth specific and general questions.

Then we get to the, we take a breath and we get to the challenges. This is where you strike jurors based on the information that you just received and what's on my big giant oat tag, you know, schematic of all my notes when I'm taking a jury notes. There's two types of challenges for a jury. Four cause, which are basically unlimited in number, and what we call peremptory challenges, which are challenges you can make for no reason or any reason without cause. In a New York state criminal court, you get 10.

Each side gets 10 jurors that they can strike for no reason or good reason, bad reason, whatever. And then there's unlimited for cause. And I'll tell you how that works in a minute with one exception. You can use your peremptory challenges any way you see fit. But if it looks to the other side into the judge that you're purposely targeting people of color, of a certain race, gender, or ethnicity, you want to get rid of all the men, you want to get rid of all the black Americans, you want to get rid of all the men. You want to get rid of all the black Americans. You want to get rid of all the Hispanic Americans. Then the lawyer or the judge can do what's called a Batson challenge, B-A-T-S-O-N, comes from the Supreme Court case from the 1980s. US Supreme Court case

says you can't do that. If there's a Batson challenge, the judge will investigate it, and if that is determined to be sustained, the judge will put that person back in the box and will effectively void the peremptory challenge of the person who's done something improper. So that's a little side note, little side teaching on a Batson challenge. Now, for cause is unlimited, meaning if this person is just a practicing neo-Nazi that attended a rally for Donald Trump, he needs to go. That'll be a four cause challenge. Usually that's done by the judge. The judge will say, I'm striking jurors 6, 11 and 9. Now we're down to whatever we're down to in my map, nine jurors now. Now you get rid of the four

causes or you raise the issue of these people should go and it shouldn't count against my peremptory. Once you do that, prosecution going first for cause, then the defense goes second for cause. Now you've gotten rid of all the four cause people from your jury panel, the veneer, okay? Then you move to peremptory, 10 aside, unless you have this other issue, the batson issue. Let's assume you don't, 10 aside.

Prosecution goes first. Who's your 10? Who do you want to strike? And then they go back and forth on their 10 a piece until they get to a jury. If they start losing people from this veneer, they call up, the judge calls up and has the bailiff bring up more people to fill the box.

They're trying to get seats one through 12 filled, right? And so they go back and forth on it until they've now exercised and exhausted all of their peremptory challenges, 10 a piece, which is a lot. That's why it takes long to pick a jury, probably not gonna even start the challenge process until day three, maybe the end of day two. Because there's this kind of the opening housekeeping that happens with a jury, welcoming them, telling them the basics

about the case that the lawyers have agreed upon with the judge and all of that. And then after they're done with burning their tent apiece, there should be at least 12 numbered now sitting in a box. Again, that's why judges will require the bailiff and those that are responsible for jury services to pull up so many potential jurors. There's probably 100 to 150 potential jurors to get down to this 12 plus six. Because once we finish the process for the 12, then we start all over again with the up to six alternate jurors. See why this takes so long?

Once they get the 12, the person occupying seat number one, juror number one, is the jury for a person in New York. It's not like in other states or even in federal where you go pick the jury for a person. You know, that's one of the usually, sometimes one of the first things juries have to do when they start to deliberate is pick the four person. It's picked for you in New York.

Seat number one is automatically the four person, regardless of their background, as long as they've gotten through the gauntlet of this process of being selected, they're as qualified as the next person as a matter of their educational background or their language skills or anything like that. They are the foreperson.

The foreperson has certain duties and responsibilities in leading the deliberations and then effectively communicating with the court if there's notes during deliberations and all that. Once the one through 12 are in the box and they are sworn in, there's no backsies. You can't say, oh, I had another challenge left. I want to get rid of four. You're done. Once the 12 are sworn, they are your jury. And now the parties and the judge moves on to the

six alternates. I think it'll be about six alternates here. And those six alternates, once they're picked, same process, one through six, then what happens is they listen to all the evidence. They're there every day of the trial, sitting alongside other jurors. In some jurisdictions, the alternates don't even know their alternates. They're told later that they're alternates. Here, that's not the case. They know their alternates, but they got to pay attention because they could be pressed into duty at any time. It's like playing on a baseball team. You're on the bench, but the first baseman could pull up with a hamstring. You're in. And that's what they're instructed.

They got to show up every day on time just like any other juror. They are a juror, except at the time when the trial is over, hopefully there's 12 standing, some might have been replaced along the way by the six alternates prior to deliberations. Prior to deliberations, it's relatively straightforward. Juror number two gets COVID, they're out. They bring up one of the alternates from the bench, they take that seat, everybody stays where they were, number wise, and that's the end of it.

Even the fourth person, fourth person can get replaced. Number one, alternate in, boom, you're the fourth person. That's why it works. And so that'll happen before deliberation. Once deliberation happens, there's a difference. Once deliberation happens, they've been sworn in, they've been sent back to the jury room to deliberate, and somebody doesn't show up or get sick, that person can only be replaced after deliberation starts

with the consent of the defense. If the defense doesn't like it, they've just bought themselves and the prosecution a mistrial. They'll have to try this case all over again because they didn't agree. Now, if they agree, but they don't have to, to have one of the alternates step in, then they're back to 12 and they can continue to deliberate. They can't do it with 11, as in some federal courts or in federal court. It's state court in New York. It's state court in New York. You got to have 12 after deliberation starts only with the approval of the defendant

to decide whether they're going to agree to that. If they don't agree to that, it means we're doing this all over again with a new trial. Mistrials happened. No double jeopardy here. We don't have a problem with they can't try Donald Trump again because they haven't reached verdict yet. But it's gonna, you know, it's gonna be another six to eight week delay. There's no other way to do it. You got to dump the jury. You got to start all over again. There's usually a gap of about a week for people to get their acts together and they're gonna start all over again. So, you know, if I'm Donald Trump, you know him, he'll pray that after deliberation somebody gets sick, he won't agree to the alternate and they'll have to start all over again. You know that's the strategy. But I wanted you to have it from a trial lawyer perspective, this really important jury selection process,

because you'll be watching it next week, not on television or in audio. You'll have to come back to us on Legal AF to give you that explanation on Wednesdays and Saturdays at 8 p.m., Eastern time on our YouTube channel, and then on audio podcast platforms of your choice. And then the leaders of Legal.io AF are gonna be doing hot takes all along the trial, the beginning of the trial, the middle of the trial, the end of the trial day, four days a week for the trial

because they're taking the day off right in the middle, a dark day that we like to call it. And we'll come right back to you. And if you like this kind of content, you can find me on as a contributor on the Midas Touch Network under Michael Popak. Look for playlists, look for contributors. You'll see all my 1200 or 1300 hot takes, just like this one. So until my next hot take, until my next Legal AF, this is Michael Popok reporting.

Heary, heary. Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF. Exclusive content you won't find anywhere else, all for the price of a couple of cups of coffee. Join us at patreon.com slash Legal AF. That's patreon.com slash Legal AF.