Expert: Judge may be “forced to take extreme measures” to protect jurors after Trump intimidation

Seven jurors were sworn in on the second day of former President Donald Trump's New York hush-money trial, slotting in more than a third of the number of jurors and alternates needed to hold a trial in the state. Their seating, which occurred faster than anticipated, also has some legal experts preemptively sounding the alarm about jurors' safety. 

The selected Manhattan residents were pulled from a group of 96 prospective jurors who began the process Monday afternoon. Four of the jurors chosen thus far are men and three are women. Among those seated are two lawyers, an Upper East Side oncology nurse, an IT consultant originally from Puerto Rico, a Chelsea-based software engineer, a Harlem woman who works in education and a man originally from Ireland who resides in West Harlem, Politico reports. 

The jury will determine whether Trump is guilty of falsifying business records to conceal a hush money payment to an adult film actress who claimed to have had a sexual encounter with the former president in 2006. Prosecutors have accused Trump of depriving voters of important information about his conduct with women by executing the cover-up in the final weeks of his 2016 presidential campaign. After a break on Wednesday, the trial will resume Thursday morning with a new slate of 96 jurors. 

Once jury selection is complete — which could conclude by the end of the week — the trial will commence with the parties' opening arguments and evidence presentation. At the court's current pace, that could happen as early as next Monday, according to Bennett Gershman, a Pace University law professor and former New York prosecutor.

"After Monday, it looked like the jury selection process might take weeks," he told Salon, adding that he was "very surprised" by the number of jurors seated Tuesday and the increased "likelihood" that the required 12 jurors and up to six alternates could be selected by the end of the week. 

Dozens of people were dismissed from the jury pool upon telling presiding Judge Juan Merchan that they could not be impartial, according to Politico. Further questions led the judge and the parties to dismiss others for a reason, while a smaller few were removed by the prosecution and defense teams, who, Gershman said, are each entitled to 10 opportunities — called "peremptory" challenges — to cut prospective jurors without providing a justification. 

"The grounds for striking a juror 'for cause' typically is the juror’s expressed inability to be fair, impartial, and to able to keep an open mind whatever their politics or personal views," Gershman explained. "Some jurors may have demonstrated in their past strong views about Trump and the case. That would not necessarily be a ground to excuse them if they insist they could still be fair and consider the evidence objectively."

Even then a juror who has held "strong beliefs" either in favor of or against the former president but maintains she or he can be fair, he added, can still be stricken by either side in a peremptory challenge. 

Attorneys for the former president made clear Tuesday that they'd explored the depths of the prospective jurors' social media pages in search of potential signs of bias in years-old posts. Several potential jurors were removed after the judge examined their previous online musings.

Merchan dismissed one man after Trump lawyer Todd Blanche pointed to a social media post where the man wrote, “Good news!! Trump lost his court battle on his unlawful travel ban!!!” followed by a suggestion to "lock him up."

In other instances, the judge rejected Blanche's attempts to give certain prospective jurors the boot, Politico notes, including one whose husband shared a post suggesting that "The Avengers" should take down Trump. 

When vetting prospective jurors for a trial, prosecutors and the defense have different qualities that they look for, former U.S. Attorney Joyce White Vance explained in a Wednesday post to her Substack newsletter, "Civil Discourse."

"The defendant is looking for holdout jurors," she writes, adding later that the "goal" for Trump’s defense team is to seat "a jury that can’t reach a verdict, a jury that 'hangs,'” which could lead to the declaration of a mistrial. 

Prosecutors, however, given their task in order to obtain a conviction is having to "convince every juror that their evidence is proof of guilt beyond a reasonable doubt" are aiming to remove prospective jurors who "they believe won't them a fair shake," Vance said. 

As the selection process has gotten underway, juror profiles have also flooded the airwaves and the internet as media opine over the morsels of information about the individuals who will decide the former president's fate in the case. How detailed some of the profiles have been — coupled with Trump's earlier scolding by the judge over his courtroom mutterings following a prospective juror's questioning — has also prompted some legal experts to highlight potential issues with juror safety.

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Asked about what jurors could be thinking after being chosen, former federal prosecutor Ankush Khardori voiced concerns for the jurors' wellbeing in an interview flagged by Mediaite. 

"First of all, I imagine it’s somewhat surreal, right? To be selected. I am wondering if some of them are a little unhappy with the amount of information that is being made public about them," Khardori told CNN's Wolf Blitzer Tuesday evening, emphasizing that the responsibility of guarding the information "resides with the DA's office and with the judge."

Khardori added that he does not think "this jury is gonna remain anonymous necessarily if they keep this up."

While only the judge, the prosecution and the defense team known the full identities of the jurors and whether the jurors need other protections now is "unclear," Gershman told Salon, the judge could later order "the trial to be held in such a way that the jurors could be shielded from being viewed by the public and the media" should it ever "reasonably appear that the jurors might be subject to threats and intimidation by Trump and his followers."

"Given that Trump has threatened and intimidated so many persons in the criminal justice system – judges, prosecutors, their families, witnesses – and was even berated yesterday by the judge for muttering angrily within earshot of a prospective juror – it is not inconceivable that the judge might be forced to take extreme measures to protect the integrity of the trial and the jury," he said.