Lawyers On The Trump Jury
If you represented Donald Trump, would you have removed the two Biglaw attorneys as jurors?
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Yesterday was the sixth day of Donald Trump’s criminal trial in New York Supreme Court. And it was a tough one for the former president and his lawyers, at least according to the New York Times and Washington Post. (Today isn’t a trial day because Wednesdays are off, to allow Justice Juan Merchan to deal with other cases.)
The prosecution’s first witness, David Pecker—ex-publisher of the National Enquirer and an erstwhile Trump ally—testified about the “catch and kill” tactics he used to buy and bury negative stories about Trump, to aid the then-candidate’s 2016 presidential campaign. And then outside the presence of the jury, during oral argument about whether some of Trump’s social-media postings violated the gag order previously imposed by Justice Merchan, the judge chastised one of Trump’s lawyers, Todd Blanche. After the attorney made one argument that Justice Merchan found particularly strained, the irritated jurist told Blanche, “You’re losing all credibility with the court”—words a trial lawyer never wants to hear.
At the end of the day, though, Trump’s fate will be decided by the twelve members of the jury—including, as previously discussed in these pages, two Biglaw attorneys. One is a transactional lawyer, while the other is a civil litigator. Is this positive for Trump? I thought so, as I wrote in last weekend’s Judicial Notice:
I agree with the experts who told Betsy Woodruff Swan of Politico that [the lawyers’] presence is probably positive for the former president. Given the political orientation of Manhattan, which gave Joe Biden 85 percent of the vote in 2020, the best the defense can hope for is jurors who will be fair and open-minded—as opposed to jurors who will convict Trump for the crime of being Trump. And lawyers, as both analytical thinkers and officers of the court, are likely to view the case objectively and take their duties as jurors seriously.
In the criminal case where I served on a jury, there were four lawyers on the panel—and I can understand why the defense lawyer wanted us there. It was a “buy and bust” drug case, the defendant was an unsavory character with a long rap sheet, and the defense was relying on a technical, legal defense called the “agency defense.” As lawyers, we understood the elements of the defense, as the judge explained it to us, and we found it applied—so we acquitted. In contrast, a jury with fewer lawyers might have viewed the agency defense as legal mumbo-jumbo, seen the defendant as a career criminal, and convicted.
We don’t yet know what kind of defense Todd Blanche and Susan Necheles will mount for Trump. But if it involves anything that might be described as “technical,” then lawyers on the jury could be a plus. To laypeople, “technicalities” are loopholes; to lawyers, “technicalities” are… a living.
But in the comments, I received interesting pushback from Bill Dyer (aka “Beldar”), a seasoned trial lawyer who has picked many a jury:
𝐈 𝐰𝐢𝐥𝐥 𝐧𝐞𝐯𝐞𝐫 𝐥𝐞𝐭 𝐚 𝐥𝐚𝐰𝐲𝐞𝐫 𝐛𝐞 𝐬𝐞𝐚𝐭𝐞𝐝 𝐨𝐧 𝐭𝐡𝐞 𝐩𝐚𝐧𝐞𝐥 𝐰𝐡𝐢𝐥𝐞 𝐈 𝐬𝐭𝐢𝐥𝐥 𝐡𝐚𝐯𝐞 𝐚 𝐩𝐞𝐫𝐞𝐦𝐩𝐭𝐨𝐫𝐲 𝐬𝐭𝐫𝐢𝐤𝐞 𝐮𝐧𝐬𝐩𝐞𝐧𝐭.
I never, ever—if I can possibly help it—want to have another lawyer, whom I don't know, arguing for or against my client’s case in the jury room—with no court reporter or other record being created; outside my, or my opponent’s, or the judge’s hearing; indeed after all of us (except to a limited extent, the judge) are finished with our work before them; and with no realistic appellate remedies for anything short of demonstrated “outside interference” from someone not on the jury. I don’t want another lawyer arguing the case with no one to make or rule upon objections, no one to correct or balance said lawyer, and the other jurors knowing full well that said lawyer is, indeed, carrying the same bar card as us lawyers in the courtroom (including the judge)….
I cannot conceive of any possible rationale for not striking them if I were representing Donald Trump. Sure, they already know concepts like burden of proof and reasonable doubt, which criminal defendants generally rely upon. But they’ll also know concepts like principal/agent law, “due diligence,” and “materiality,” which otherwise the prosecution would have to teach the jury as part of proving its case.
So, readers, what do you think? Trump’s lawyers still had peremptory challenges left that they could have used to strike the attorney jurors, but they decided to save them to deploy against others. Was that smart? What would you have done in their shoes?
More broadly, do you agree with the conventional wisdom that lawyers rarely get picked for juries? Based on my own experience and my (admittedly anecdotal) information about other lawyers (and even judges) making it onto juries, I believe it’s more common than people think. If you have your own tales from the jury-duty trenches, either about serving or getting rejected during voir dire, I’d love to hear them.
Please share your opinions and war stories in the comments to this post—open to all readers, not just paid subscribers, as I always do for Notice and Comment posts. Thanks!
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If I was trump's attorney I probably would have peremptorily struck them because of the political alignment of biglaw attorneys. I know David is far removed from his days at Wachtell, but as someone who was in biglaw during the time of Trump and beyond, it is a different ballgame in terms of open partisanship and vitriol.
That said, if the question is the more general "would you always err against a lawyer juror" for the concerns articulated by Bill Dyer, the answer would have to be no. I would love a lawyer-juror if I was a criminal defense attorney for a case involving drug crimes. I would love a pharma attorney-juror if I was defending a personal injury car accident case.
It's always going to depend on the facts of my case. Trump's case strikes me as a clear "nowhere near this jury pool" position for his defense team as it pertains to biglaw attorneys. Other cases would break different ways. If the facts were largely indifferent to commonly-held attorneys biases, I would probably err on striking attorneys from the pool.
I've never actually been selected for a jury, but in law school I opted to take part in Kirkland's two-day mock trial Kirkland Institute program (for I think fourth year associates?) as a volunteer juror. Once we broke for deliberations, the otherwise working-class mock jurors all largely deferred to my judgment as a law student -- which was strange to me and I worried my presence had undermined the purpose of the mock trial. I would be foolish if I didn't take that experience forward into my legal career.
I'm a lawyer and have served on a federal criminal jury with other lawyers. In that one experience, what I found most helpful from one or two of the lawyers during deliberations was reorienting the conversation to the elements of the crimes when the conversation strayed away from whether defendant met the elements and instead focused on something legally/factually irrelevant, like whether the defendant ought to be incapacitated in light of their conduct. Not all of the lawyers on the jury were outspoken/played an outsized role: whether they play such a role I think depends on the personality of the individual lawyers. I think there also may be an intentional reticence some lawyers will have when they're on a jury, not wanting to come across as playing an outsized role in the deliberations.