Burning Jurors

Judge Juan Merchan’s admonition to the media was “apply common sense.” If that seems less than satisfying, whether because there is no such thing as “common sense” or because it’s an invitation to do whatever they want, the problem is somewhat clear. The defendant is entitled to a public trial, and the media is entitled to report on things that happen in public. Whether that includes the workplace of a juror or the mole on the left side of the nose, it can be inappropriate and dangerous to disclose it, and also protected under the First Amendment, every last detail.

As of now, there are 12 in the box and six alternate jurors in the Trump hush money case. The reason for only six alternates is that is the maximum permitted under New York Law, CPL § 270.30, except in a murder case. It might not be enough in this case, but that’s the most the law permits. If the jury burns through more than six alternates, a mistrial will be declared and it starts all over again. Would some in the media exploit this gap?

Jesse Watters, a prime-time host on Fox News, went further than many. On Tuesday, he showed footage of one prospective juror who had been excused. The woman explained that she had told the judge that she could be unbiased, then explained that “it’s very difficult for anyone really in this country to come to this without prior opinions.”

He followed the segment by going through each of seven jurors who had so far been chosen, disclosing features such as their race, attire, hair and skin tone, as well as their favorite outdoor activities, musical preferences and in one case, a specific employer. He described the second juror in depth: her educational background, her current profession, her romantic partner’s profession, her neighborhood, her marital and parental status and where she gets her news.

“I’m not so sure about Juror No. 2,” Mr. Watters said.

And just like that, the jury lost a seated juror. Whether the jurors can be fair to the defendant is a matter of public concern, and there is nothing wrong with the media questioning it. Can they do so without reporting about the jurors, the reasons why a juror might raise doubts? Obviously not. Does that mean they need to reveal their skin tone, attire or employer? Perhaps it does, under certain circumstances. And the media has its own job to do, apart from the judge’s job of protecting the integrity of the jury from outside influence and fear that they will be targeted for harm should they not find in the way some demand.

But what can be done? Traditionally, disclosing juror identities in cases where they could be targeted was not done as a matter of media norms. But then, it was only an issue in cases involving defendants whom the media believed might take action to influence the jury.

This typically happened in trials of mobsters and drug kingpins, the sort of accused defendants who might either buy a juror’s vote or threaten their children if they voted the wrong way. But not a former president, both because no former president has ever been on trial in a criminal prosecution before and because this was a former president, who should be far above such nefarious conduct.

Will the jurors and alternates be subject to further media disclosure? What if the media films them leaving the courthouse? What if they ambush interview them during trial? Already, information published has revealed the identities of other jurors, because putting two and two together for those relatively close to the jurors isn’t hard to do. They haven’t been touched yet, or had their identities publicly revealed, but people know who they are and it could still happen, particularly if things go badly at trial.

“It serves no purpose,” Justice Merchan said about publishing physical descriptions, adding that he was directing the press to “refrain from writing about anything you observe with your eyes.”

Whether it serves a purpose, or at least a legitimate purpose, for the media is very different than whether it serves a purpose for the court.

On Thursday, Justice Merchan seemed frustrated by news reports that included identifying characteristics of potential jurors that had been aired in open court. He said: “There’s a reason why this is an anonymous jury, and we’ve taken the measures we have taken.”

“It kind of defeats the purpose of that when so much information is put out there,” he said.

He added that “the press can write about anything the attorney and the courts discuss and anything you observe us do.”

The New York Times discusses this as an order from Judge Merchan. The problem is that the media is not subject to the court’s orders. Even if prior restraint was problematic, he has no jurisdiction over the media to order them to do, or not do, anything. And the media has a First Amendment free press right to publish whatever information it deems to serve a purpose. It’s not up to the judge to decide what’s newsworthy.

It’s not that Judge Merchan is wrong about his authority, and duty, to control his courtroom and protect the integrity of the trial, including the identities of jurors who have good reason for concern.

But he also said he had the legal authority to prevent reporters from relaying employer information on prospective jurors. He added that “if you can’t stick to that, we’re going to have to see if there is anything else we can do to keep the jurors safe.”

Judge Merchan could have had potential jurors reveal their personal information in camera, installed a shield so reporters couldn’t see them and report on their physical appearance, and ordered that they be sequestered, even though sequestration is no longer the norm. He certainly has the authority to take action on his side to protect the jurors from outside influence and harm.

But if the media decides to wreak havoc by revealing information about jurors, whether because they believe it’s newsworthy or to force a mistrial, they have the ability to do so, norms be damned. An appeal to common sense, or even human decency, isn’t likely to do much to stop a partisan media from using the gap to their side’s advantage and burning six jurors. Those days are gone.


Discover more from Simple Justice

Subscribe to get the latest posts sent to your email.

5 thoughts on “Burning Jurors

  1. MollyGodiva

    Of course the medial will burn the jurors. It is an easy way to stop the trial. Maybe the judge will have a lick of sense and not hand the jurors to the media for abuse.

  2. Bryan Burroughs

    It’s disappointing to see folks in the media who are well aware of Trump’s lies be willing to help him assault our judicial system. That they would allow otherwise innocent people performing their civic duty to be subject to death threats and harassment, all for partisan politics is mind-numbing.

    If the judge had ways to prevent this, it’s insane that he didn’t take those avenues. Trump has shown a penchant for siccing his deranged sycophants on anyone and everyone who might hold him accountable. Surely after the attacks on his own daughter, Merchan understood this.

  3. B. McLeod

    Where the acolytes of identity politics have assigned every citizen a presumptive pro-Trump or anti-Trump bias, it becomes impossible to seat a jury that is impartial beyond question.

  4. Jardinero1

    This is a show trial. Show trials have different rules. The process is irrelevant, only the outcome matters.

Comments are closed.