The Week Ahead

October 9, 2023

It is impossible to write tonight without acknowledging the ongoing horror in Israel and Gaza that is afflicting people on both sides of the conflict. I do not feel qualified to write about it, although I have strong feelings. I have visited the region and studied both the history and political origins of the problems in the past and remain an avid student of current events. I think it's important to acknowledge that the situation invokes strong feelings and that access to accurate reporting is critically important.

In the past, in a crisis of this magnitude, we were able to get at least some real time reporting on social media and on Twitter specifically. It was easy to search for reporting from a wide variety of news organizations all in one place. With some discernment, and the use of blue checks with trusted experts weighing in, it was possible to get a sense of what was accurate and what was disinformation. But of course, that functionality is a casualty of Elon Musk's X/Twitter.

No one who is serious would pretend that Twitter or any other social media platform was ever perfect, but that's not the point. In the past, we could use the platform to obtain reliable news, often from firsthand reporting. That happened, for instance, at the start of the Russian invasion of Ukraine, when reporting was murky. But now Twitter is awash in a sea of misinformation and hate. And we see, in its absence, how important having an international public square is in a moment like this.

While people have migrated to other sites, and some seem promising, as of yet none has the full range of features and posters, especially reporters, that made Twitter valuable in the past. You could find your loved ones, or get word of them at least, when other communications were down. You could, if you cared to, find experts who could help you understand what was going on. The loss of that public access to information and a robust public square bodes poorly for 2024. What’s going on with Twitter as Musk, much like Trump, emboldens some of the worst and most untruthful, most hateful, most violent elements in a society that is already at risk, may well have legs into the coming election. A big part of our task in the months ahead is going to be figuring this out and working to find ways to counter it. If you’ve got suggestions or plans you’re putting into action, please let us all know about it in the comments—include the other sites you’re posting on and how we can find you there!

This week, in legal news, we’ll be following two developments.

Jury Selection in Fulton County

First, on Monday, we see serious signs that the Fulton County district attorney is on track for an October 23 trial unless someone blinks—i.e., one or both defendants scheduled to go to trial that day decide to plead guilty. There is a Monday deadline for the parties to submit a list of proposed questions for juror questionnaires. That means defendants Kenneth Chesebro and Sidney Powell must submit questions they want propounded to jurors when they appear in court in two tranches, two groups of 450 possible jurors each, on October 20 and again on October 27. Each juror will receive a questionnaire that they will have to complete under oath, in advance of individual questioning, which begins on October 23. (Presumably they are scheduled this way so that the second group can be cancelled if a jury can be seated from the first tranche.)

Georgia law requires that potential jurors in a felony criminal case be asked the following questions, although it does not specify whether they should be asked in writing or asked orally in open court:

1. “Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?” If the juror answers in the negative, the question in paragraph (2) of this subsection shall be propounded to him;

2. “Have you any prejudice or bias resting on your mind either for or against the accused?” If the juror answers in the negative, the question in paragraph (3) of this subsection shall be propounded to him;

3. “Is your mind perfectly impartial between the state and the accused?” If the juror answers this question in the affirmative, he shall be adjudged and held to be a competent juror in all cases where the authorized penalty for the offense does not involve the life of the accused; but when it does involve the life of the accused, the question in paragraph (4) of this subsection shall also be put to him;

4. “Are you conscientiously opposed to capital punishment?” If the juror answers this question in the negative, he shall be held to be a competent juror.

Judge McAfee’s standing trial order, which you can read here, also requires the lawyers to submit their proposed questions for individual voir dire—oral jury examination—two days in advance of the start of trial, although the Judge can vary any of these directives for a particular case if he believes it’s appropriate.

But these are the minimum questions, and each side will have the opportunity to go beyond them to try and discern jurors who should be excluded “for cause”—because they have a bias that cannot be cured, or jurors that a party might want to use one of their discretionary challenges, called a “peremptory strike” to keep off the jury (although even here there are limits, a strike cannot be used to exclude a juror because of their race or gender, for instance). Questions can be unusual—I would often ask potential jurors what bumper stickers they had on their cars, which would yield illuminating results.

In a case like this, it’s expected that there will be a lot of jurors, perhaps even most of them, who are somewhat familiar with at least parts of the case. The issue the court will have to determine for each juror is whether they can set aside any preconceived notions and decide the case based solely on the evidence they hear in court and the law as the judge explains it to them. That’s the commitment each juror who is selected will be asked to make under oath when the jury is seated. It could be a long process.

A Garcia hearing in the Mar-a-Lago case, at long last

On Thursday afternoon, Federal Judge Aileen Cannon, in Florida, will hold separate Garcia (lawyer conflict of interest) hearings for Trump’s co-defendants Walt Nauta and Carlos De Oliveira.

Two and a half weeks ago, Judge Cannon finally entered her order scheduling the hearings, following the government’s motion requesting them. Prosecutors argued they were necessary because reason to believe each defendant’s lawyer had a conflict of interest had emerged. The Judge took several weeks after the motion was fully briefed by both parties just to schedule the hearing. I wrote at that time about Garcia motions in general and the specifics of these motions in particular, which should come in handy if you’d like a refresher.

The key point heading into the hearing is that a third potential defendant Yuscil Tavares, obtained new counsel and decided to become a cooperating witness for the government, after a similar proceeding in the District of Columbia where he was under investigation. But Judge Cannon declined to have “stand by counsel”—an objective and experienced lawyer who is free of bias—available to provide any desired advice to defendants at the hearing. It’s fairly typical for a judge to have counsel available at a hearing like this and a bit of a head-scratcher as to why Judge Cannon would balk.

The lawyers for the two defendants have said there is no conflict or that any conflict can be cured using a variety of measures that strike me as ones no reasonable judge would accept. For instance, John Irving, Mr. De Oliveiras’ lawyer, says he no longer represents three witnesses the government may call at trial, so there’s no actual conflict. He seems to have forgotten that his obligation to protect their confidence is ongoing. Nor is the offer from his local Florida counsel Donnie Murrell to cross-examine the witnesses at trial sufficient. Although the client can waive a conflict, subject to the Judge’s approval, it must be based upon a full revelation of the conflict and its impacts, made on the record and formally waived.

Irving’s firm is reportedly paid by Trump’s Save America PAC, as, says the reporting, is Mr. Nauta’s lawyer, Stan Woodward. While there is nothing wrong with having a third party pay legal fees, the lawyer’s duty is to the client, not to the person paying the bills.

Also at issue tomorrow, after Judge Cannon flagged concerns about it in her initial scheduling order, will be the government’s use of two grand juries, including one in Washington, D.C., after the indictment in Florida. Irving suggests that was improper and that the remedy should be the exclusion of the testimony of Yuscil Taveras, the director of information technology at Mar-a-Lago, who is now cooperating. Taveras is “Trump Employee 4” in the superseding indictment filed in July against Trump, Nauta, and De Oliveira, and his testimony appears to be, in large part, the basis for the new charges. Taveras was represented by Woodward before he switched to a court-appointed lawyer.

It’s safe to say heading into the hearing that Judge Cannon does not appear to be on the government’s side in this one, but the law in the Eleventh Circuit regarding her duty to ascertain that defendants have lawyers who are free of conflicts is clear.

Lots to keep our eyes on this week.

We’re in this together,

Joyce