The defense had 20 peremptory challenges, and they were gone before juror 11 was seated in the box. There was no red flag at first. On her jury questionnaire, she wrote that one of her hobbies was “writing novels.” Big deal. Except she studiously omitted a detail that was clearly salient.
Lead prosecutor Joan Illuzzi responded by saying juror No. 11’s questionnaire included the fact that she enjoyed “novel writing.”
The juror indicated she enjoyed “novel writing” under the “hobbies and interests” section of the questionnaire, Weinstein attorney Donna Rotunno told CNN.
“Not, ‘I am writing a book on this topic,'” she said. “Big difference.”
The novel she was writing was “about ‘predatory’ older men and their relationships with younger women.
She said “no” when asked by Cheronis if she has ever done any research on predatory men. She gave the same response when asked if she’s ever done any research on relationships between younger women and older men, Rotunno said. And she answered, ‘no’ when Cheronis asked her if she’s kept abreast of the Weinstein case.
“She gave answers that we thought were inconsistent based on other things we were able to find online, and we wanted to raise those issues to the judge, and we believed that those presented a cause challenge,” Rotunno told CNN.
The defense asked Judge James Burke to strike the juror. He refused without comment. They sought an extra peremptory strike. Nope. They moved for a mistrial. Denied.
Contrary to the assumption of non-lawyers that jury selection for the defense is about trying to put sympathetic people on the jury, it’s about trying to keep biased people off. No one knows for certain what beliefs are in the hearts and minds of potential jurors, so we work with stereotypes, gross generalizations, psychological profiles and life experiences that tend to suggest they’re going to be bad.
Would we like favorable jurors, the sort of person we believe would be inclined to acquit? Of course, but they’re going to be stricken by the prosecution. For the same reasons we want them, the prosecution doesn’t. They strike. We strike. If it works the way it’s supposed to, we end up with a jury that isn’t too biased one way or the other. It’s the best we can do.
But when a juror conceals facts about her background which would cause bells and whistles to go off, it’s a double whammy. Not only are the underlying reasons of obvious concern, but the fact that the reasons were intentionally concealed makes the concern overwhelming. Some folks want to be on a jury, a particular jury, too much. It’s not because they like the free sandwich for lunch during deliberations, either. There is no juror more scary than this one, the one who hides facts that reveal a flagrantly biased agenda, who desperately wants to sit in judgment.
It could be that Juror 11 isn’t biased. All the indicia to the contrary, she might be a completely fair juror, and never thought to mention that she was writing a novel that paralleled the case because it never occurred to her that one was relevant to the other. She was just that fair. It could be so.
But it isn’t likely.
The question is why the court didn’t strike the juror, there being ample reason to do so. The next question is why the prosecution didn’t acquiesce to the juror being stricken. If they have faith in their case, did they need a biased juror this badly? Sure, she might persuade other jurors to see Weinstein’s conduct as criminal, but there are eleven other jurors, and it’s unlikely that she will carry the day.
In criminal prosecutions, there is no interlocutory appeal. Only after conviction will the decision not to strike or declare a mistrial be subject to review by an appellate court. In the event of a conviction, there will be at minimum a far larger issue on appeal dealing with the introduction of four putative Molineux witnesses, women alleging sex crimes against them even though they are not the crimes for which Weinstein is on trial. This is how they nailed Cosby in his second trial when the evidence of the crime with which he was charged fell short in the first. The prejudice of propensity evidence is overwhelming, even when they wrap it up in a pretty pink bow.
But why add another issue to the mix, a gaping hole right off the top by seating a juror who deliberately omitted clearly critical information of directly relevant bias? Should Weinstein be convicted, there is certainly a real concern by the prosecution that the conviction sticks. They surely realize that the Molineux witnesses present a huge potential for reversal. Why try for more problems, more reasons to have a conviction tossed?
As for Judge Burke, his job is not to see the defendant convicted, but to assure a fair trial and let the outcome be whatever it will be. In a case of this high profile, it does nothing to enhance the sense of judicial propriety to dismiss the very legitimate concern that a stealth juror who wants to make sure Weinstein gets convicted remains on the jury.
It’s rare on appeal for challenges to a juror’s bias to succeed, but that’s usually because the information is revealed during deliberations, and the law rightly restricts its use to challenge the verdict as a means of protecting jurors from post-conviction harassment to ascertain whether there was any impropriety in the jury room. But that’s not the case here, as the information is already known and raised up front, when there was ample opportunity to address the issue.
For those who want to see Harvey Weinstein convicted, there is strong reason to expect his trial to be as fair, as proper, as possible. Nothing is gained by a conviction that’s subsequently reversed. The benefit of seating a tainted juror, a stealth juror, is negligible, but it makes no sense to start a trial with a time bomb in the jury box. Juror 11 should have been stricken and this open wound turned into a non-issue.