How To Pick Your Jury

Monday night, Iowa Republicans caucused for Donald Trump. Tuesday, he was back in a New York courtroom where a jury is set to decide how much he must pay E. Jean Carroll in damages for defamation. This is the second of her two cases, and the previous jury already determined Trump sexually assaulted Carroll and then defamed her by calling her a liar for telling the story. Carroll’s lawyers have asked for both compensatory damages and punitive ones; the latter meant to punish past and deter future misbehavior by defendant Trump.

Today, a jury of nine men and women was selected, and the lawyers for both sides made their opening statements. Testimony begins tomorrow, and E. Jean Carroll will almost certainly testify. This should be a relatively fast proceeding. Carroll’s lawyers said they expect their presentation of evidence to last between two and two-and-a-half days. Trump’s lawyers estimated their case at one to one-and-a-half days, excluding the time it would take if Trump testifies. That’s the big unknown, whether his lawyers will call him to testify on his own behalf here.

Trump and Carroll were both present in court for jury selection. This is the first time she’s had to be in a room with him in person since he assaulted her.

Judge Lewis Kaplan instructed the jury that certain decisions were out of their hands. He told them that for purposes of this trial, it had already been determined that Trump sexually assaulted Carroll and that they must take that as a given. Trump, of course, still wants to dispute that finding. But Judge Kaplan is on firm footing in this regard because of the doctrine of collateral estoppel, sometimes called issue preclusion, which says that once a judge or jury has made a decision about an issue between two parties, it’s final. It can’t be relitigated in a subsequent case like this one—not even Donald Trump gets two bites at the same apple. That will be hard on Trump, who, at times today, showed difficulty restraining his reaction to comments and questions. It’s easy to understand why Trump’s former lawyer in this case, Joe Tacopina, discouraged him from being present in the courtroom for the first trial.

This case is very different from the civil fraud case we’ve been watching in New York state court for the last couple of months. This case is in federal court, and the decisions about disputed facts—here, that’s the amount of damages the defendant, Trump, has to pay the plaintiff, E. Jean Carroll—will be made by a jury, not a judge. In the state case, Judge Engoron tolerated some of Trump’s shenanigans because there was no jury present to be prejudiced by them. This proceeding will be sharply different with a jury in the box. Judge Kaplan is known for being no-nonsense and lived up to that today, cutting off any efforts by Trump’s lawyers to circumvent his pre-trial rulings before they could complete the sentence.

The jury selection process in this case is interesting for what it tells us about the people determining the amount of damages Trump must pay Carroll. But it is also instructive as we begin to think about what to expect when the January 6 case goes to trial in Washington, D.C. Although the cases are being tried in different federal courthouses, the pool of potential jurors is similar—big cities, places where Trump has lived, and where people are familiar with him and his legal woes. Although, if the experience in today’s case is any example, perhaps not as well informed about Trump’s legal cases as you might expect.

The ground rules for jury selection were simple. Judge Kaplan asked the potential jurors questions, followed up with those who had an affirmative response to ask if their answer meant they couldn’t be fair, and excused those who said yes. He reminded the lawyers that both Carroll and Trump are prohibited from trying to communicate with any juror unless they have the court’s permission. That’s interesting in light of Trump’s ongoing posts on Truth Social, which make me wonder at what point that behavior could be construed as an effort to communicate with jurors.

Apparently, Trump thinks not, because while he was in court, where he didn’t have access to electronics, over 30 posts were made on his Truth Social website. Many of them were screenshots of old Carroll tweets. "Can you believe I have to defend myself against this woman's fake story?" he asked in one of them. That post included a video clip of an interview Carroll did on CNN with Anderson Cooper. In the clip, Cooper characterizes rape as an act of violence. Carroll, with a look of sadness on her face, reflects that in our society, many people view rape as “sexy” or as a matter of fantasy. Trump and his followers have falsely said that Carroll thinks rape is “sexy,” as if that somehow makes what Trump did okay.

The Judge told jurors today, "It has been determined already that Mr. Trump did sexually assault Ms. Carroll, that he knew when he made the statements about Ms. Carroll that they were false, that he made them with reckless disregard." The Judge has already ruled that none of the tweets Trump’s account was busy posting this morning can be introduced into evidence during the trial. So, will the Judge view this as violating his order? It’s not a direct communication, but it’s possible a juror could see it or someone might tell them about it. It’s a certainty that both the Judge and Carroll’s lawyers are watching this closely, but with the trial slated to move so quickly, they will want to get it done without the interruption that filing a motion about Trump’s behavior would involve. If he keeps it up, that calculus could change.

But one thing is certain. When Carroll’s lawyers make their closing argument to the jury, they will point to today’s social media firestorm. They will ask the jury to award punitive damages in an amount sufficient to make Trump, who has been completely unrepentant following the first jury verdict against him, stop. And the risk to Carroll is far greater than “just” continuing to defame her character. In the era of doxxing, swatting, and outright criminal assault like the one on Paul Pelosi, Trump irresponsibly puts Carroll at risk. We heard some of that today in opening statements where Carroll’s lawyer asked the jury to focus less on a number and more on the question, “How much will it cost to make him stop?” She pointed out to the jury that Trump, after all, is a self-professed billionaire.

But back to jury selection. As it began, Judge Kaplan reminded the lawyers that the Court had issued restrictions (like not contesting Trump assaulted or defamed Carroll, not repeating prejudicial material like her old tweets), and he directly asked Alina Habba, who appeared to take the lead today, whether she had advised Trump of them. Habba wanted to revisit the matter, but the Judge told her that although he’d hear from her briefly, “that's the way it's going to be.” The need to confirm with a defendant’s lawyer that their client understands pre-trial rulings is fairly unusual. But the Judge most likely wants to avoid a mistrial and the need to start over with a new jury and a new trial because Trump can’t behave.

There is precedent for concern something like that might happen based on the way Trump launched into his comments during the closing arguments at the civil fraud trial last week while ignoring the judge’s question as to whether he would follow the rules the Judge had set out if he was permitted to speak. There, the Judge was the finder of fact, and he can set aside Trump’s nonsense when it comes time to make his decision. But here, there is a jury of lay people in the box. The Judge will have to take any violations Trump commits very seriously because even with an explanation from the Judge, it could be impossible for some or all of the jurors to set aside any stray comments or even inappropriate gestures Trump makes in front of them, preventing Carroll from receiving a fair trial. Both Carroll and the Judge want to see this case proceed to a verdict, while Trump is probably just as happy with a mistrial. So, the onus will be on the Judge and the plaintiff’s lawyers to keep the case on track.

Trump’s lawyers tried to revisit a lot of the Judge’s rulings on what evidence could be admitted. In a rape case (which this isn’t, of course; it’s a defamation case), evidence of the victim’s prior sexual history isn’t admissible. Before these modern rape “shield” laws were passed, defendants would offer evidence of how a woman dressed or other relationships she had engaged in to insinuate consent. Here, Trump wanted to introduce evidence of Carroll’s tweets of a frankly sexual nature. Carroll was an advice columnist for Elle Magazine who touched on matters of sex and relationships in her columns. Trump wanted to mention her cat’s name, Vagina T. Fireball—as though that somehow made it acceptable for him to sexually assault her in a dressing room.

The Judge ruled that none of this could come in, that along the lines of the rules that shield rape victims from these sorts of arguments, it would be unduly prejudicial to Carroll to admit evidence of this sort. And he cut off every effort by Trump’s lawyers to revisit the issue with a curt “overruled.” Judge Kaplan: “In my courtroom, when the ruling is made, that's the end.”

The Judge started jury selection by advising prospective jurors of measures that would be taken to protect their anonymity and suggesting they not use their real names with other jurors. I’ve never seen a judge issue a warning like this before. It speaks to the level of concern Trump’s behavior has provoked about the safety of people involved in his trials.

The Judge got some interesting responses when he asked about conflicts of interest jurors might have with a party or their law firm.

• Judge Kaplan: Anyone had dealings with Ms. Carroll's law firm? Prospective juror: I worked with them pro bono on marriage equality issues.

• Prospective juror: In 2017 I worked for Ivanka Trump's company. In response to Judge Kaplan’s questions, she said she could be fair.

• Prospective juror: My father's moving company was a mover for the Trump companies. He, too, said he could be fair, although you’ve got to wonder whether Trump paid his father’s company for their services, given his track record.

The Judge asked if any of the prospective jurors had heard anything about the case, and shockingly to those who’ve been paying so much attention, they didn’t all say yes. My experience as a prosecutor was that people in the community are much less focused on legal proceedings, even those that command a lot of attention, than those of us who are interested in these issues might expect them to be. Even among those who said they had heard something, no juror responded that they couldn’t be fair.

Another interesting data point: Only two prospective jurors said they didn’t vote in the 2020 Presidential election in response to a question from the Judge. One juror had contributed to Trump—he volunteered that both he and family members had, and did not make it onto the jury. A number of others had donated to Democrats.

Juror 68 had gone to a rally for Trump. He also responded that he thought the 2020 election was stolen. Juror 69 agreed. Neither juror made it onto the case.

There were lots of raised hands when Judge Kaplan asked if anyone had seen news of Trump’s criminal indictments. Two jurors responded that they didn’t think they could be fair, winnowing down the number of potential jurors even further.

Judge Kaplan told the room he would instruct jurors not to discuss the case on social media. Was there anyone who couldn’t resist the temptation? No one admitted that they wouldn’t be able to.

It continued like that until the morning break. When everyone returned, the Judge went around the room, asking each juror to let the lawyers know how old they were ( “That’s optional,” he told them), what country they lived in (to make sure they were eligible to sit on this jury; one juror no longer lived in the District and was excused during the process), their education, what they did for a living, and what their children did. One juror hadn’t looked at the news in a year. Another got their news on TikTok. There was a violinist, a prosecutor, and a doctor. A number of people worked in the media and in tech. Several people came from other countries, including Germany, Spain, Israel, and Azerbaijan.

The lawyers selected jurors 34, 56, 28, 21, 6, 66, 82, and 10. They will be known by their numbers throughout to protect their anonymity. Trump had disappeared from the courtroom by the time the Judge returned from break and opening arguments began.

The Judge started by instructing the jury on the issues that they were required to take as already decided by the prior jury and what they were to decide:

• Trump sexually abused Carroll by inserting his finger into her vagina.

• Trump's false statements about Carroll were defamatory.

• This jury must decide whether Trump’s defamatory statements caused Carroll harm and, if so, how much he should pay.

Carroll’s lawyer made the argument that we have anticipated all along, that the jury has the ability to make Trump stop by imposing damages in an amount sufficient to do that. Alina Habba’s argument for Trump was less predictable. She drew an objection almost straight out of the box.

Just days ago, Habba told the court her client could testify without violating the court’s restrictions on what the defense could say. But it turned out she was the one who got into hot water first.

• Habba: President Trump defended himself when publicly accused —

• Carroll's lawyer: Objection, Your Honor!

• Judge Kaplan: Don't go much further.

• Habba: Her career has prospered. She has been thrust back into the limelight like she always wanted

That was Habba’s theme. Trump was the real victim. E. Jean Carroll got everything she ever wanted. Habba explained damages in a way that couldn't help but impress upon every member of the jury that her client had sexually assaulted Carroll, even though damages in this case are for the defamation, not the assault. Habba argued that Carroll had to prove that she “actually suffered harm”, attributable to Trump’s statements. You’re not here to “make her whole” from the assault, she admonished them.

Habba claimed Carroll got lots of attention and the “fame” she desired. She ignored the end of Carroll’s career at Elle or the fear she’s had to live with that one day, somewhere, one of Trump’s followers will attack her. Habba called Carroll “the catalyst of her own harm” and accused her of “monetizing her brand”.

Blame the victim. What are a few mean tweets? Habba asked, like this was mean girls and high school, before concluding Carroll had more fame than ever before in her life, as though the sexual assault was a small price to pay. Habba might enjoy the limelight, but there is no evidence Carroll does. Juries hold lawyers accountable for the promises they make to them in opening statements. If a lawyer says they’re going to prove something, they’d better be able to. Juries remember. Habba has promised this jury she will establish that Carroll was fame-hungry, and I don’t recall any evidence of that in the first trial. To the contrary, the evidence suggested Carroll had endured death threats and a level of public censure no one would want to take on. It will be interesting to see how the jury resolves all of this.

A more skillful lawyer than Alina Habba might have avoided reminding the jury any more than absolutely necessary that her client sexually assaulted the plaintiff. But by putting Carroll on trial and suggesting she is the one at fault here—money hungry, attention hungry—she’s given this jury a path forward to impose heavy damages on her client. How much is enough to keep Trump from doing it again? Five million dollars wasn’t enough to keep him from defaming Carroll immediately after the first judgment. The prospect of this trial only emboldened him. This jury will be charged with protecting Carroll, and with both Trump and his lawyer unrepentant, that could turn out to be a very high number.

Last night in Iowa, Republican voters selected a candidate who is on video talking about grabbing women by the p*ssy, who had sex with a porn star while his third wife was home with their infant son, and who a jury found assaulted a woman in a department store and then lied about it when confronted. He went on to defame her character using the megaphone of the presidency. None of this has mattered so far with Trump’s base. They have made their deals, and they have their excuses for him.

But there are still independent voters out there and some Republicans who are still making up their minds, the ones who say they won’t vote for Trump if he’s convicted in a criminal case. And as unthinkable as it is to those of us who follow the news carefully, jury selection today showed that there are people who haven’t paid close attention. It’s possible that Carroll’s case can play a role in informing more people. It has the potential to influence decisions about whether to vote and who to vote for. The case is important for Carroll, but it’s also important for the country. And while the criminal trials move forward on a slower track, this case’s moment is now.

We’re in this together,

Joyce