There are a few tricks to seating a full jury when you’re trying a former president. But one of them, according to one of the only lawyers who has already done it, is making sure prospective jurors feel physically safe.
That’s already proving a problem in the first week of proceedings in Donald Trump’s first criminal trial.
Across the week, reporters and cable news hosts have broadcast biographical information about potential jurors that, in some cases, makes it possible for enterprising members of the public to figure out who they are.
That was intentionally impossible during writer E. Jean Carroll’s successful defamation case against Trump.
Roberta Kaplan, the lawyer who helped Carroll secure two multimillion-dollar defamation judgments against Trump in Manhattan federal courtrooms in the past year and a half, said extraordinary efforts to keep the jury anonymous in those cases helped jurors find the courage to serve.
“In the Carroll trials, both Carroll trials, we were surprised by how few jurors said they didn’t want to serve. Typically, even in a case that is not well-known, a lot of potential jurors want to get out of serving,” Kaplan told NOTUS. “I think it was less than five between both Carroll trials. I think the main reason for that is because the jurors all felt very secure that the measures that were taken were going to keep them anonymous.”
In the Carroll cases, federal district court Judge Lewis Kaplan used almost all of his available power to keep jurors totally anonymous, preventing even the lawyers from knowing basically anything about them. The parties in the case did not object, but two media organizations did. In a ruling before the first civil trial began, Judge Kaplan said there was “a very strong risk jurors will fear harassment, unwanted invasions of their privacy and retaliation” when dismissing the media objections.
That set up the kind of jury protection scheme usually only seen in high-level federal cases, like those concerning terrorism. Both jury pools in the Carroll cases had their names, addresses and jobs shielded from everyone, including attorneys. Court officers picked up and dropped off jurors each day in central undisclosed locations.
That’s not happening this week.
On Thursday, jury selection took a step backward when a juror who had already been seated said she could no longer serve after reportedly becoming convinced her identity would become public.
That followed a Fox News segment Wednesday night calling out the juror based on publicly released data about her, including her employer and other information. Trump picked up on the segment and boosted it on Truth Social Wednesday evening.
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Federal rules around juries and New York state rules are different from what guided the Carroll case, limiting the amount of anonymity the judge in Trump’s criminal case, New York Supreme Court Justice Juan Merchan, can promise jurors. So far, the experience for prospective jurors differs wildly from the Carroll case.
Marchan implored reporters covering the case on Thursday to refrain from publicizing identifiable information about jurors, but a steady stream of facts about them continued to be reported. Some rejected jurors have relished the spotlight, walking out of the courtroom directly to waiting TV cameras.
At the end of the Carroll civil cases, Judge Kaplan suggested that jurors who had just handed Trump a massive legal defeat keep the anonymity he had created for them.
“My advice to you is that you never disclose that you were on this jury,” he reportedly said.
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Evan McMorris-Santoro is a reporter at NOTUS.