By Scott Graber
It is Tuesday, early, and I’m in Port Royal. This morning I have my coffee — Gevalia Special Reserve — and the Wall Street Journal.
This morning the WSJ tells us about the jury selection process as regards Donald Trump’s “hush-money” case.
Donald Trump is not happy about this case for a variety of reasons.
His big complaint is the venue, Manhattan Island, which he says is a seething anthill of radial Democrats — liberals who despise their native son now removed to Mar-A-Lago.
Trump, and his lawyers, say that he cannot get an unbiased jury and that the trial should be relocated to Upstate New York (or maybe Lower Alabama) where he has electoral support.
When I began to practice law (in 1971), jury trials were relatively rare and the “jury pool” was small and then the domain of aging, sedentary white men. In those long gone days most law firms kept records — on 3×5 cards — of former jurors and how the trials they had judged had come out. In those salad, sepia-tinted days lawyers often shared their index cards, and their opinions, sometimes actually sitting at the counsel’s table helping a colleague in the selection process.
Because Beaufort County was small, the personalities of many jurors was well known, and the selection process was often accomplished in a few hours on the first day of the term right after the roster meeting. But I do remember stories of jurors-gone-rogue who, upon entering the deliberating room announced, “Just so you know, I’m voting “not guilty” regardless of what the rest of you do, or think, and so I’m going to sit over in the corner until you get round to a non-guilty decision …”
Early in my career, I was selected to defend a young man from Pennsylvania who came to Beaufort County where he and his cousin killed a young black woman. The killing had been drawn-out, and savage, and the black community was outraged. The State, in the person of Randolph “Buster” Murdaugh sought the death penalty.
My partner, Ralph Baldwin, and I were focused on the jury and the hope that at least one of the jurors, perhaps a woman, would not be able to vote for the death penalty. The State of South Carolina paid us a nominal fee to represent John Arnold—and we spent that on a “forensic psychologist” to help us find, and seat, that one elusive juror.
Jury selection took five days and involved the hours-long interrogation of hundreds of potential jurors. Maureen — I cannot remember her last name — prompted us on what questions to ask, then the follow-up, all the while listening to the juror’s answers and watching his or her body language.
This was tricky business because Buster Murdaugh was also listening to our questions, and answers, and making his decision whether to “seat” or to “excuse” the juror. This process was also made more difficult by Judge Clyde Eltzroth who would yell, “For God’s sake, counsel, what difference does it make what she watches on television? Whether you like it not we’re going to deal with this juror before lunch. Move on!”
Today Beaufort County has a larger population and is more diverse — there are substantial numbers of women, hispanics, blacks and young people in the jury pool. And there is a huge retired population who, generally speaking, want to serve on a jury when called in spite of being able to avoid that service based on their age.
One might think there is no way of knowing, in advance, how a juror in, say, Sun City, Habersham or Sea Pines really feels about race, abortion or the death penalty.
In the Trump trial, the judge began by asking, “Do you have any strong feelings about the Defendant?” A potential juror might have said, “Yes I do.” And then the judge followed up with, “Notwithstanding those feelings can you make an informed, unbiased decision based on the facts you hear in this courtroom?
It is my belief that many of the potential jurors then said, “Yes, I can suspend any bias, emotion, and focus on the facts.”
And in olden days that would have been the end of the inquiry. Today, however, one’s emails and posts can be “scrubbed” for political and ideological content. Trial lawyers can peer back into the past of the juror and then — when emotion and bias bubble-up from one’s careless, clueless youth — “excuse the juror” for cause.
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at cscottgraber@gmail.com.
