On Monday, April 15, 2024, jury selection will begin in the first of four separate high-profile criminal cases brought against former President Donald J. Trump. Regardless of personal and political views about the former president, it is indisputable that the trial is sensational.
Every one of the prospective jurors knows of the Defendant. Every one of them possesses previously-formulated opinions of him. Many of them will have voted for or against him. For months, prospective jurors have each been exposed to vast amounts of media and social information (and disinformation) about the case. Now, twelve of them will be asked to set all of that aside and decide the case fairly and impartially.
Is it possible to receive a fair trial in a high-profile case? Are there any special steps that courts take to minimize the impacts of pre-trial publicity?
Veteran trial attorney James Mertes sat down to discuss these important questions.
"Any lawyer who says that it is not a special challenge to try a high-profile jury trial has never tried a high-profile jury trial," Mertes said.
Mertes, the managing partner of the Sterling, Illinois Law Firm of Mertes & Mertes, has tried several high-profile civil and criminal jury trials during his 31-year career as a trial attorney. Mertes's cases have been live-streamed and his courtroom arguments have often been televised since the Illinois Supreme Court permitted news cameras in the courtroom. Even before that, many of Mertes's cases were covered extensively in the media before they went to trial.
"Before the trial begins, the lawyer must assess the actual level of community awareness of the case, " Mertes explained. "Sometimes, a party's perception of community awareness is very different from the actual level of community awareness of a case," he added.
Sometimes community awareness of a case is extraordinarily high. "I have tried several jury trials of cases that were on the front pages of newspapers and top stories of television news for months," Mertes said. "By the time the case proceeds to trial, the prospective jurors have already received a lot of information about it," Mertes added. "Some of that information might be evidence that they can rely on at trial, and some of it may be information that is inadmissible at trial or, worse yet, just completely false," he added. "People tend to believe the information they receive when they receive it from a source that they think is credible," Mertes said. "That does not always lead to the most factually accurate of understandings," he added.
"If the lawyer determines that community awareness is unusually and possibly prejudicially high, the lawyer has a few options to address it," Mertes explained. "First, the lawyer must consider the filing of a motion to transfer venue," Mertes said. "Motions to transfer venue due to pretrial publicity are rarely granted," he explained. "To prevail on the motion, the party who filed it must prove that there is actual community prejudice that could be avoided if the trial were moved to another county," he said. "That's no easy task," Mertes added. "I have watched hearings on motions to transfer venue where the moving lawyer comes into court with a stack of newspaper articles and news videos," he said. "The weight of pre-trial publicity is certainly relevant to the motion," he said, "but by itself it usually isn't enough," he added.
"Before I file a motion to transfer venue due to pre-trial publicity, I actually commission an independent poll of the county in which the case is pending," he explained. "This is much more complex than it sounds," he said. "We contract a reputable polling group, often from a public university," he said. "Then, that polling group works with our law firm to formulate a reliable and representative polling sample upon which a valid poll can be based," he remarked. "It cannot be a random poll of the entire community," he said. "We must first narrow down the polling sample to those people who qualify as jurors," he commented. "Jury pools are selected from licensed drivers, registered voters, and people with valid government-issued identification who reside within the county," Mertes explained. "So that is the sample group we poll," he said. "But we have to be careful in the polling," Mertes said. "We want to receive information without putting out information into the actual jury pool," he said. "It's a delicate process," he added.
"I tried a murder case several years ago," Mertes said. "Before I filed the motion to transfer venue, I commissioned an independent poll that showed that 91% of potential jurors had heard about the case, and over 80% of those persons had formed an opinion on the critical issue of innocence or guilt." he added. "Based upon that data, the case was moved to another county," he said.
"Now none of this will matter one bit in a case as sensational as New York versus Donald Trump," Mertes remarked. "Where on earth would the court move the case?" Mertes asked. "He is well known everywhere," Mertes said. "People everywhere have opinions of him and of the criminal cases against him, one way or the other," Mertes added.
It is very rare for courts to grant motions to transfer venue," Mertes observed. "So rare, in fact, that the tremendous expense of doing so is rarely justified," he added.
Instead of polling and motions to transfer venue, courts usually rely on the jury selection process to attempt to identify prospective jurors who may already have been prejudiced by pre-trial publicity.
"That too is a very tricky and delicate process," Mertes explained. "The court does its best to identify prospective jurors who may have already formulated opinions about the case," Mertes said. "But when we are questioning prospective jurors, we don't want them saying something that might prejudice the remainder of the jury pool that is sitting there in the courtroom listening," he added. "For example, if I ask a prospective juror, 'have you read or heard anything about this case?' and the prospective juror responds with 'Yes! I have heard this or I have heard that,' the rest of the jury pool, who may not have heard this or that, has now heard it." he added.
"In the end, courts want fair and impartial juries," Mertes said. "That does not mean juries comprised only of people who live under rocks." he said. "It means juries comprised of good people who will do their level best to set aside their own personal prejudices and biases and base their decisions only on the evidence that they receive in the courtroom," he added.