The 34 guilty verdicts in the New York State court trial of Donald Trump have been called everything from fair and impartial justice to political persecution.
As I say about any trial in which I haven’t heard all the testimony and seen all the exhibits, I have to be somewhat hesitant to express definitive views of the result, whether I personally loathe or applaud it. But I do think much of the often-partisan commentary about the result overlooks something very important — the system plainly worked.
Wait, what?
How is that plain given the divisive attacks on the verdict made by various elected officials, not to mention attacks on the judge, the prosecutors, the witnesses and almost anyone else associated with the prosecution?
It’s plain because what happened in New York over the last two months happens in courtrooms across America every day. Jurors receive a notice in the mail weeks ahead of time telling them to show up at a central jury room. They show up, not knowing what awaits them — a bank robbery, a white-collar case or maybe just a run-of-the-mill civil case.
They are subjected to long delays, lots of just sitting around and a schedule they do not control. They are additionally subjected to personal questions about their views, their experiences and their personal commitments. Just how important is that vacation you have planned in two weeks? Can it be rescheduled? You say you have to take your grandmother to the doctor next Tuesday. Can someone else do that?
Generally speaking, people participate in this process without complaint. They don’t gather in protest or try to shut down the system. They are polite, usually direct and, in the vast majority of cases, willing to serve. When voir dire is extensive, including a questionnaire as used in this case, both sides end up knowing a fair amount about the citizens who will decide the case.
If selected on a jury, the 12 or 16 or eight — or however many are seated — upend their lives to focus on a dispute that, in most cases, they knew nothing about before coming to court. Even in the Trump case, which was quite well known, the jurors didn’t know how the evidence would unfold and had only a very rough idea of what kind of time commitment would be required.
Yet they did it. The jurors showed up every day and by nearly every published account of the trial paid attention to the testimony adduced and the documents placed in evidence.
Here’s the real crux of it. When it came down to the deliberations, the jury appeared to get to the very heart of the dispute within a few hours of beginning their work. When the jury asked for portions of the testimony of National Enquirer publisher David Pecker to be read, along with portions from disgraced former Trump lawyer Michael Cohen, they were plainly focused on the very issue both sides urged them to consider in deciding the case — the credibility of the state’s key witness, Cohen. The state had argued Cohen’s testimony had been corroborated; the defense argued Cohen was an inveterate liar who could not be trusted. Both sides had their say, and now the jury got to have its say.
I don’t know how you could have a better display of how a jury works in evaluating the credibility of witnesses than what this jury did. Of course, there can be objective criticism of the legal instructions given to the jurors or the rulings on admissibility of evidence made by the judge. But those are known as appellate points. And perhaps some later interviews with some of or all the jury members will cast their deliberations in a different light.
Moreover, it’s certainly reasonable to ask if this case was an appropriate use of the limited resources of the Manhattan DA’s office under all the circumstances. None of that is the jury’s business. The jurors themselves don’t decide what comes before them and what doesn’t. They didn’t select this case to be brought by the Manhattan DA’s office, and they didn’t ask to be on this particular jury.
This jury had an additional circumstance that the vast majority of juries do not experience — a legitimate potential concern for personal safety given the vitriolic criticism bordering on incitement from some quarters.
To me then, the work done by these ordinary citizens — including two lawyers — was nothing short of remarkable. Trial lawyers can discuss and debate the result and argue about the tactics of both sides. That’s fair game.
But anything but praise for the citizens who were effectively drafted into a fractious and controversial case? That’s just fake news.
Tom Melsheimer is co-chair of the litigation department of Winston & Strawn and managing partner of the firm’s Dallas office. His email is tmelsheimer@winston.com.