With several guilty plea resolutions in the January 6 cases now in the offing and the courts gradually reopening for jury trials, soon enough we will see trials arising from that day’s events. Just imagine selecting jurors in a case where virtually every American watched the events in real time — forming opinions about the participants and the merits of their “cause,” and coming to terms with what provoked that infamous day. How does a lawyer deal with that?
As background, typically, it’s the defense lawyer that ardently wants to uncover a juror’s deep-seated biases that may threaten their client’s chances for an acquittal. Probably, though, in the upcoming January 6 trials it will be the prosecutor who will desperately want/need to elicit what might be at play in the potential juror’s head that might hinder a verdict favorable to the government (even if the objective facts about the particular defendant’s conduct line up with the prosecution’s theory of the case).
Meaning, perhaps the juror is secretly a “fellow traveler” who sympathizes with the Capitol invaders but someone who simply lacked the wherewithal, energy, resolve or commitment to “go to the wall for the cause” at the Capitol that day. This prosecutor needs to know if she’ll get a fair trial on behalf of the United States. This is a somewhat unusual situation, indeed, in which a prosecutor might find herself with jurors secretly sympathetic to the defendant’s plight going in.
Any prosecutor asked to articulate on the record the kind of jury she would want seated would reflexively say that “all I want is a jury fair to both sides.” That statement would be false – every prosecutor (or defense lawyer) wants a jury that will enable them to win, period – all platitudes notwithstanding.
With this background, in My Cousin Vinny the prosecutor, Jim Trotter III, was engaging with the jury. He told it that “it’s your job to decide who’s telling the truth. Truth. That’s what ‘verdict’ means.”
Unfortunately, many people get their beliefs about criminal justice from the movies – there are too many to mention. Still, those with skin in the game truly know that trials aren’t necessarily about truth at all. Often, they’re more about perspective.
Rudy Giuliani claimed in one of his more extravagant moments that “truth isn’t truth.” Some people believe that – whatever it means. Can we expect a totally honest verdict from the 1/6 jurors – especially when the jurors come at life and the January 6 assault on the Capitol from totally different perspectives, and different edges of the sharply polarized political divide? In My Cousin Vinny, the evidence that the defendants were falsely accused was largely clear-cut by the end of the trial.
But neither politics nor hard core differences over a claimed “stolen” election existed in My Cousin Vinny. In My Cousin Vinny, there was no need to excavate preconceived notions from jurors that might be at play here about Donald Trump, Joe Biden, “the Steal” or anything like that – on either side of the political/cultural divide. Even broader than that, though, deciding which jurors the respective parties might want to strike or select at the January 6 trials will be about critical preconceptions — indeed, biases — that the jurors may harbor. Sometimes, such biases can never be erasable or even overcome when a juror hears the objective facts — what Vinny Gambini’s adversary chose to call “the truth.”
That said, no prosecutor would want seated any juror who might support QAnon; who is a “fellow traveler” of the rioters; who thinks the election was stolen; who thinks that the rioters were simply “tourists”; or who believes that Ashli Babbitt was a martyr.
And last, lest we ignore the strikingly obvious, no prosecutor would want a juror who voted for Donald Trump in 2020 believing that “he alone can fix it.” Invoking prosecutor Trotter, would you actually expect a determination of “truth” from such a juror, any more than a defense lawyer would truly expect to get the “truth” from a juror who is an unambiguously devout “Never Trumper” and fervently believes that the Biden victory was totally legit?
Unquestionably, any prosecutor worth her salt would desperately want to bounce anyone who lines up with pro-Trump thinking, especially about the election vote tabulation. On the other hand, no knowledgeable defense lawyer would want the opposite. The defense lawyer would want jurors who believe that the election at least may have been stolen — that Trump and his supporters were “robbed.” The oppositional jury thinking on the part of the respective lawyers is, indeed, black and white. Notably, though, race (on which basis lawyers may not legally strike jurors) won’t be the direct reason why defense lawyers would likely not want most Black people seated on these juries.
While the prosecutors of the January 6 defendants will surely use their limited number of peremptory challenges to strike pro-Trump jurors, they’ll ideally want to strike such jurors for “cause” inasmuch as the number of such challenges is unlimited.
So, the ability to determine through voir dire the existence of radically pro-Trump leanings will be key. And inasmuch as most experienced criminal lawyers believe that cases are won or lost at jury selection – especially where the existence of a riot seems objectively clear-cut — separating out the “steal” proponents is crucial.
The burning issue, then, for both prosecutors and defense lawyers, will be how wide the presiding judges will allow voir dire to proceed in excavating a juror’s mindset about the bona fides of the election, and how it motivated the defendant’s conduct at the Capitol.
So, for example, will the presiding judge allow the jurors to be asked (either in a questionnaire or individual questioning) if they voted for Trump; believe in the kind of thinking espoused by QAnon; and think that Babbitt was a martyr? When those questions are answered affirmatively, serious questions in the eyes of the prosecutor — and probably the judge, too — will be raised about the juror’s objectivity.
If, however, the judge allows questions urged by the prosecutor on this score, fairness dictates that the judge should grant the defense considerable leeway in an effort to achieve balance. So, it would seem fair that the defense be permitted to ask questions like “What do you think of people who believe that the election was stolen?” Or, “Do you believe that President Trump actually encouraged violence and trespassing?” And, finally, “Do you believe that the bulk of the people at the Capitol on January 6 came intent on trespass and violent behavior, if necessary?” If jurors answer those questions affirmatively, there’s strong reason to challenge their “fairness” as it relates to the defendant. And, so, maybe there would be a valid challenge for cause.
Unlike in My Cousin Vinny, the outcomes of these trials will have serious consequences for America going forward. When O.J. Simpson was charged, the Los Angeles County District Attorney decided to venue the case in Downtown LA. He could have placed it in Santa Monica where the jury would have largely consisted of mostly caucasians, which the experts said would more likely have been sympathetic to the prosecution. The District Attorney made what was likely a dramatic mistake for a short term political benefit – trying to convince the public that Simpson would be found guilty by any jury.
Whether good or bad, and although it remains troubling to have to acknowledge, the makeup of a jury is simply critical to almost any trial’s outcome – particularly those under discussion here. It would be foolhardy, indeed, for the prosecutor to want to try her case before the first twelve jurors seated in the box – the mantra of some cavalierly old school (pre-jury consultant) prosecutors. If she wants above all to win – and she certainly should – she needs to impress the judge that fair jurors shouldn’t harbor secret biases against the government’s case. The defense lawyer needs the same transparency for his client.
My Cousin Vinny is fiction. This is for real.
Joel Cohen practices white collar criminal defense law at Stroock & Stroock & Lavan, LLP. He is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publishing, 2014) and an adjunct professor at both Fordham and Cardozo Law Schools.
[Image via Spencer Platt/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.