Hunter Biden Strikes Plea Deal

Well, there went a Republican cudgel—potentially. Yesterday, First Son Hunter Biden agreed to a plea deal with the Department of Justice that might (or might not) resolve his legal issues. It still has to be approved by a judge, but if that happens, Biden will not serve prison time.

The plea deal covers two legal issues in general. First, during the out-of-his-mind-on-drugs phase of his life, Biden purchased a gun illegally. That's a felony; you can't buy a gun if you're a user of illegal drugs. He also failed to pay approximately $100,000 in taxes in 2018 and 2019 in a timely manner. By the terms of the plea deal, Biden will enter into a pretrial diversion agreement for the felony and plead guilty to two misdemeanor accounts of tax evasion and will be given 2 years' probation. Note that he already settled his tax bill, including penalties, so he doesn't get to keep the previously unpaid funds. He also attended a gun safety program.

The White House quickly issued a statement that was short and sweet:

The President and First Lady love their son and support him as he continues to rebuild his life. We will have no further comment.

Based on the response of Joe and Jill Biden, our impression is that they are relieved about two things: (1) that their son looks like he will avoid prison time and then, way, way down the list, (2) that this issue won't be hanging over the President's head during the campaign. Our further impression is that if we were speaking of the previous president, that list would be reversed. Readers will reach their own conclusions, of course.

And speaking of the former president (and his enablers), they were all furious at the news. Trump took to his fringe social media platform to declare "The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere 'traffic ticket.' Our system is BROKEN!" Other right-wing politicians and commentators adopted the same basic line of complaint, maintaining their general position that the DoJ treats Democrats with kid gloves but brings the hammer when dealing with Republicans.

At this point, it's worth noting that this particular bit of "legal analysis," from Trump, et al., is just... terrible. The gun law that Hunter Biden violated is an obscure one, put on the books more for show than to solve any real problem, and is rarely charged. As to the tax charges, they are misdemeanors and restitution has already been made. When we're talking about a first time offender, and about prisons that are already jam-packed with more serious offenders, well, a couple years' probation is par for the course.

There's another problem with the "two different justice systems" argument: The U.S. Attorney who handled this case is David Weiss, a Trump appointee who has affirmed that he had "ultimate authority" over the case, and that there was no interference from the White House or from the Department of Justice leadership. Either Weiss is not in bag for the Democrats or, if he is, his appointment does not speak well of Trump's ability to clean up "corruption" if he's reelected president.

We'll also note one last thing when it comes to the Republican response. At the same time that Trumpers, from the former president on down, are claiming the Department of Justice is cooking the books for Democrats, they are also latching onto a single sentence from the DoJ press release about the plea deal. That release ends with: "David C. Weiss, U.S. Attorney for the District of Delaware, made the announcement. The investigation is ongoing." Those last four words give Trumpers hope that more dirt and more charges are coming, and many of them made a point of highlighting that detail. They did not apparently notice or care that this puts them in the position of arguing simultaneously that: (1) DoJ is corrupt and incompetent, and (2) but there could still be juicy stuff coming.

House Republicans have promised that the plea agreement isn't going to stop their investigations of Hunter Biden, and in fact is just going to make them redouble their efforts. Whether this will work for them, politically, is an open question. Sure, the red-meat-eating base would like to see 10, 50, 100 investigations of the Bidens. But the swing voters essential to winning the presidential, and many other, elections? They might just take note of the fact that the DoJ conducted an extensive investigation and reached what it considered to be a satisfactory conclusion. Those same voters might also notice that congressional Republicans keep claiming they have evidence of great nefariousness, but just never seem to be able to produce that evidence. Some of these folks might even conclude that there is indeed a witch hunt going on in Washington, but that Donald Trump isn't its target and Joe Biden isn't its perpetrator. (Z)

Joe Biden Says Something Stupid Again... Or Not

This isn't the second-most-important story of the day, but it's about the Biden family, so we're going to stick it here nonetheless. Yesterday, we had an item about Joe Biden's "God Save the Queen, man" remark. And among the observations we made was that we did not regard this, in any way, as a sign that Biden's got cognitive issues.

This led a number of folks to e-mail us with the other Biden misstatement du jour, something that happened at the League of Conservation Voters' dinner last week. The President was delivering remarks on various environmental projects and, if you believe the right-wing media, he said something really embarrassingly bad. Here, for example, is the Biden clip, accompanied with commentary from a right-wing talker, under the title "Biden's Latest Gaffe May Be The Worst Yet!":

Should you not wish to watch it, the transcription of the "gaffe" is: "We have plans to build a railroad from the Pacific all the way across the Indian Ocean." On the surface, that sounds pretty bad. Obviously, there is not going to be a floating sea railroad that has Los Angeles as one terminus and Dar es Salaam as the other.

The point we tried to make in yesterday's piece, and that we now make again, is that before playing armchair neurologist and diagnosing Biden with dementia, it is more instructive to try to decode what the president (or anyone else in this situation) was actually saying. And guess what? That becomes much easier to do if you hear the full quote, as opposed to presenting it out of context, as Fox and the RNC, among others, have done. Here's the actual quote:

We have plans to build a railroad from the Pacific all the way across the Indian Ocean. We have plans to build in—in Angola one of the largest solar plants in the world. I can go on, but I'm not. I'm going off-script. I'm going to get in trouble.

For now, we will point out two things (there's a third coming later). The first of those is that it's clear Biden swallowed his words a little bit, and either said (or was supposed to say) "across TO the Indian Ocean." If you put that in there, and then swap out "Pacific" with "Atlantic" (an easy transposition to make, especially for a fellow who grew up in an area where The Great Atlantic & Pacific Tea Company was the dominant grocery-store chain), then you end up with this: "We have plans to build a railroad from the Atlantic all the way across to the Indian Ocean. We have plans to build in—in Angola one of the largest solar plants in the world."

Once you do that bit of very minor reverse engineering, then the question is: Is there supposed to be a railroad built from Angola to the east African coast? And the answer is: Yes. Just a month ago, during his Asia trip, the President delivered a speech on economic development, and it included this paragraph:

[I]n Sub-Saharan Africa, the U.S. Development Finance Corporation is looking to invest in this first railway project on the continent. The rail line would extend from the western shores of Angola to the border of the DRC and Zambia, with the goal of ultimately reaching the Indian Ocean, connecting the continent east to west for the first time.

This is clearly what he was talking about.

We are not trying to be in the business of Biden apologia. But we are also educators who have a profound dislike for misinformation. And we are people who have delivered tens of millions (actually, probably hundreds of millions) of words' worth of public speaking, and we know the occasional mistake happens. A lot, actually. We've said thousands of things that weren't quite right. The difference is our audience is a classroom full of students, and not the eyes of the world, including eyes of those who are looking to jump on every misstep. Oh, and Biden has had to overcome a stutter, which is no easy thing to do.

More broadly, and this is another point we tried to make yesterday, the occasional misstatement is simply not evidence of dementia. That's just not the pathology. In general, those with dementia lose sense of time, such that they say things that make sense, but only in the context of 30 years ago. If someone says something that is utterly nonsensical, like promising that a sky railroad is going to be built, that's more a sign of psychosis. And, in any case, these conditions don't peek through once in a while, in random ways. They show up repeatedly, and in similar, recognizable ways. If Biden were to keep asking where his first wife is, that would be a bad sign. But he doesn't. And if he did show actual signs of dementia or other cognitive dysfunction, the White House staff, which has access to plenty of medical expertise, would keep him under wraps or would have quiet conversations with Kamala Harris about invoking the Twenty-Fifth Amendment. They wouldn't keep sending Biden out to deliver speeches before the cameras.

One last point, and it's the third note promised in the above paragraph. People with serious cognitive issues are almost invariably in denial, because nobody wants to believe their mind is failing them. Note that Biden, by contrast, takes ownership of his missteps, and jokes about how he'll get in trouble for going off-script. That kind of self-awareness is almost complete anathema for someone with actual dementia (or psychosis).

Since we wrote that item yesterday, we wanted to follow up today in order to make crystal clear our assessment of the situation. We simply do not believe the President shows signs of debilitating cognitive issues; the evidence just does not support it. Some age-related decline? Sure, but that's true of nearly all presidents, except for the handful of people elected to the office in their forties. And the next time Biden's political opponents seize on one clumsy sentence out of a week of public appearances, and turn it into a "Gotcha!" moment, consider the possibility that they are acting in extreme bad faith, and that they really don't have the expertise to reach the diagnosis they are clamoring about. (Z)

Judge Strikes Down Arkansas Ban on Gender-Affirming Treatments for Minors

Yesterday, we had an item about how anti-LGBTQ activism does not appear to make much business sense. Today, it's an item about how the anti-LGBTQ stuff doesn't seem to fly from a legal perspective, either.

In 2021, Arkansas became a trailblazer of sorts as the first state to pass a law banning gender-affirming treatment for transgender youth. Then-governor Asa Hutchinson (R) vetoed the bill, but the legislature overrode him. Not long thereafter, Arkansas became the first state to be sued over its ban on gender-affirming treatment for transgender youth. And yesterday, Arkansas became the first state to see its ban on gender-affirming treatment for transgender youth struck down.

In his 80-page order, U.S. District Judge Jay Moody made clear he was unimpressed by the defendants' arguments. He observed that while there are certainly some risks involved with gender-affirming treatment, the evidence "showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing." The name of the Arkansas bill, which is now in abeyance, was the "Save Adolescents from Experimentation Act." We would suggest that if you want to communicate to a judge that you're operating in bad faith, and that you are just posturing for the benefit of your base, that's the kind of name you want for your bill. Even if a person believes that gender-affirming care is wrong or harmful, there's just no argument that it's a form of "experimentation," as if trans kids are laboratory animals or something.

Arkansas is going to appeal the decision, of course. That means the U.S. Court of Appeals for the Eighth Circuit, a pretty conservative circuit, with a grand total of one Democratic appointee. That said, the Eighth Circuit does not have a reputation for making things up out of thin air, the way the Fifth Circuit does. There are also similar cases pending in Alabama (appeals to the Eleventh Circuit) and Tennessee (appeals to the Sixth Circuit). So, this is far from over, and it figures to end up at the Supreme Court one of these days.

Meanwhile, the politicians and activists who would use anti-LGBTQ stuff as a wedge issue would seem to be running out of avenues to pursue. LGBTQ marriage is now the law of the land, of course. Anti-drag-show laws are clearly a violation of the First Amendment, and are already failing to survive court challenges. Tentatively, anti-gender-affirming-surgery laws aren't going to stand up in court, either. Anti-trans-female-athlete laws haven't had their day in court, but even if they stand up, "we're keeping three trans women, statewide, off their high school swimming teams!" is not exactly the foundation for a political movement. It could be that even if the anti-LGBTQ resentment is still there, there just won't be any viable policy options available for channeling it. (Z)

A Bad Night for Incumbents in Virginia

The Virginia House of Delegates currently has a 51-46 Republican majority. The Virginia Senate currently has a 22-17 Democratic majority, along with one member who is a Republican but not a member of that caucus. So, you could call it 22-18, except with one extremely unreliable GOP vote. Gov. Glenn Youngkin (R-VA) wants the trifecta so bad that he can taste it. Whether he got closer yesterday, in the state's primary elections, is an excellent question.

These primaries were the first held under the district map drawn after the 2020 census. That alone is enough to shake things up, but on top of that, they were also the first primaries held since the 1/6 insurrection and since Roe was struck down. So, the stage was set for a wild night once the results were announced. Here are the most notable of those:

• State Sen. Amanda Chase (R) is the individual mentioned above, the one who does not caucus with her party. She's ultra-Trumpy, and indeed has described herself as "Trump in heels." She also described the 1/6 insurrectionists as "patriots." She lost narrowly to former state Sen. Glen Sturtevant (R), who is considerably more moderate.
  
  
• State Sen. Joe Morrissey (D) is quite good at retail politics, but has a long history of scandal (and even spent time in jail), and he's also anti-choice. He faced off against former state Del. Lachrecse Aird (D), who built her entire campaign around reproductive rights, and he got trounced. The final tally was 69% for Aird, 31% for Morrissey.
  
  
• State Sen. Chap Petersen (D) is not quite as moderate as Morrissey, but it's close. He was knocked off by the more progressive Saddam Salim (D), 54% to 46%.
  
  
• State Sen. George Barker (D), another moderate, was defeated by the more lefty Stella Pekarsky (D), who built her campaign around education spending and reproductive rights.
  
  
• In the only primary to pit two incumbents against each other, thanks to redistricting, state Sen. L. Louise Lucas (D) dispatched state Sen. Lionell Spruill (D). Both are long-serving politicians, but Lucas is more lefty and she built her campaign around—wait for it—reproductive rights. She is also pro-marijuana, though that may have something to do with the fact that she owns a cannabis dispensary.
  
  
• In the 25 House of Delegates races, across both sides of the aisle, only four incumbents drew a primary opponent. And only one of those, state Del. Marie March (R), was defeated. That may have something to do with the fact that she was facing another incumbent, namely state Del. Wren Williams (R). It wasn't close, though; Williams won 67% to 33%. March is a smidgen more Trumpy than Williams is, but it's pretty close, so that's not why she lost so badly. It's probably because she tried a rather dirty trick, claiming that Williams bumped into her at a holiday party, and then filing assault and battery charges (which were quickly dismissed by a judge). Alternatively, March's website notes that she and her husband moved to Virginia "when he attended medical school and we opened a bbq restaurant." We assume those two endeavors were unrelated to each other, but maybe there's something very dark going on at Due South BBQ and voters know about it.

So while there wasn't a lot of tumult when it comes to the lower house of the Virginia legislature, for five sitting state senators to get booted is a lot, especially since there were a grand total of just 22 state Senate primaries, and only 10 had an incumbent running. Note also that there's one uncalled race left, in SD-29. There, state Sen. Jeremy McPike (D), another moderate, is barely holding on against the much leftier state Del. Elizabeth Guzman, 50.2% to 49.8%. Depending on the absentee ballots, then, there could be six sitting senators swiftly sacked. Say that six times fast.

Now back to the question at the top: Could Youngkin's dream be on its way to reality? It's hard to say that it was a good night for the national version of the Republican Party, since the overarching themes of the night were "dump the Trumpers" and "protect abortion access." That said, lefty Democrats could be more likely to lose the general in Virginia than moderate Democrats (even crooked ones), while non-Trumpy Republicans could be more likely to win. Further to that point, Youngkin endorsed 19 candidates, favoring the more moderate one when that was an option, and all 19 won. Since the rebel Republican (Chase) is certainly going to be replaced by a grown-up Republican (Sturtevant), the Governor only needs two more seats to flip. That's certainly very plausible.

Of course, Virginia is also something of a bellwether for national politics. And there, as already noted, the news doesn't look great for the Republican Party. The evidence keeps mounting that abortion access is a winner; it's going to be the centerpiece of the Democrats' argument in 2024. Meanwhile, Trumpy candidates did poorly on the whole, which is probably good news for the GOP long-term, but presages an ugly year in 2024. (Z)

Paxton's Wife Won't Recuse

As long as we are on the subject of state legislatures, there was also some news out of Texas. State AG Ken Paxton is sidelined right now, as he awaits his impeachment trial on influence peddling and other charges. That trial will take place sometime in August, most likely, and no later than Aug. 28. One of the state senators, a.k.a. one of Paxton's jurors, is Angela Paxton, who also happens to be his wife.

Yesterday, after many occasions where she declined to answer questions from reporters on the issue, Angela Paxton announced that she will not recuse herself from the impeachment trial. Her argument is that state law requires her to be there, and that her more than 1 million constituents deserve to be represented at the hearings.

These justifications aren't especially persuasive. Clearly, if a member is in the hospital recovering from a heart attack, or is stuck in Cancun because the state electrical grid broke down, they can forego attendance at a meeting of the state Senate. And even if skipping the hearing is indeed deemed to be "against the law," it is highly improbable that her colleagues are going to sanction her for recusing. After all, Ken is the Paxton family member who gets impeached in Texas, not Angela.

Given this doesn't-pass-the-smell-test, I'm-just-doing-my-job framing, Mrs. Paxton is presumably planning to be a vote to acquit Mr. Paxton. The AG is in enough hot water that it sure looks like he's going to be convicted and removed from office with votes to spare. But if he somehow survives by a margin of one vote, and that one vote is from his spouse, there is going to be some Texas-sized shouting about corruption. (Z)

Cannon Sets Trial Date for August 14

Judge Aileen Cannon has taken a look at her docket, and decided that August 14 would make a swell starting date for the trial in Donald Trump's documents case. Yesterday, she issued an order to that effect.

There is zero chance that the trial will actually commence on that date. There are going to be pre-trial arguments about classified evidence, about jury selection, and about whatever Hail Mary legal issues Team Trump tries to sell to the court. In short, if you decide to book tickets for a trip to Fort Pierce, FL, on Aug. 14 so you too can stand outside with a pig's head on a stick, do make sure you buy travel insurance.

Despite the fact that the trial won't begin in August, Cannon continues to move quickly, as is consistent with the "rocket docket" reputation of the Southern District of Florida. Yesterday's order, while not terribly long, lays out quite a few rules for pre-trial activities, and in general communicates a "no nonsense" vibe. Presumably, some portion of the order is boilerplate text that was cut and pasted, but not all of it is.

It's entirely possible that Cannon is proceeding in an ultra-professional manner now so that it will look better when she puts her thumb on the scale for Trump later. But the fact is that, thus far, all indications have been that she's going to run a serious trial without passion or prejudice. Keep in mind that when the Judge botched the earlier decisions in this case, she became an object of ridicule in the legal community, and she surely got some blowback from her fellow judges. Even if she wants to help the former president, she surely values her own reputation more highly. So, as we've written several times, it's very plausible she might run a tight and entirely evenhanded trial, just out of her own self-interest. (Z)

I, The Jury, Part III: More on Voir Dire

We have a (brief) Trump legal item today, so let's have another set of reader comments on jury service, starting with some insightful thoughts from two lawyer-readers:

T.M.M. in Odessa, MO, writes: You asked for comments about the experience of folks who have served on juries. I thought it might also be useful to hear from a lawyer about their experience of what jurors are seeing.

The first thing to understand is that what happens in a trial is always an interplay between the judge and the lawyers. Some judges give the attorneys a lot of room to do what they want and let the attorneys dig their own hole. Other judges run a very tight ship and tolerate zero misbehavior from the attorneys. How a judge operates will have a very big impact on the jury experience.

For the most part, potential jurors do not know what case they are being called for jury service on. The court has several potential cases going that week and jurors are randomly assigned to a case when they arrive. There may be a general questionnaire that jurors complete when they arrive but normally there is no case-specific questionnaire that they will complete after they are assigned to a trial. High-publicity cases (death penalty cases and things like the current charges against prisoner in the dock DJT, Sr.) sometimes have "special" panels outside the normal selection process. With a special panel, the potential jurors are being called for that specific case. Sometimes, they will be sent a case-specific questionnaire in advance. If not, they will have a case-specific questionnaire when they arrive.

Once the questionnaire is completed, the next step will be "voir dire." Different attorneys translate voir dire differently. I tend to translate it as "to say what you have seen." During voir dire, the panel of potential jurors will be asked about their experiences and their view on issues. In many state courts, voir dire is conducted primarily by the attorneys. Many federal judges, however, take the lead in questioning. They may allow the attorneys to ask limited follow-up questions, and, even if the judge does the questioning, the parties get to suggest the questions that should be asked. Often the questioning can get very personal. For example, in a child sex or rape case, the parties will want to know if any potential juror has experience with sexual assault because that experience will have a definite impact on how that person will evaluate the case. In a case like the one against DJT, it is less likely that you will have questions of that type as most of the jurors will not have any experience with security clearances and classified documents. Besides who is conducting the questioning, there is also the issue of how the questioning process occurs. Some courts have the full panel assembled and the questions are asked to the group. Others do the questioning individually or in small groups. In a case like this one, it is highly unlikely that the court will do "full group" voir dire. Instead, at the very least, the court will break the panel into small groups to minimize the risk that one or two "rogue" potential jurors will give a response that taints the entire group.

Either at the end of voir dire, or as voir dire is progressing if done individually or in small groups, the attorneys make challenges. There are two types of challenges. The first is challenges for cause. A challenge for cause basically requires the attorney making the challenge to convince the judge that the juror is ineligible to serve—either because they fail to meet the statutory requirements for jury service or because for some reason the juror will not follow the trial court's instructions. There are no limits on challenges for cause as it is improper to have an unqualified or "biased" juror on the jury. In addition to challenges for cause, there are peremptory challenges. These are a limited number of challenges given to each side. Each side uses these challenges to remove jurors whom they feel "lean" toward the other side but who have not said enough for the trial judge to agree to remove the juror from the panel on a challenge for cause. For the most part, challenges for cause and peremptory challenges take place outside the hearing of the panel. As attorneys sometimes tell the potential jurors, voir dire and the challenge process picks a jury by process of elimination. It is not that each side gets their six favorite jurors. It's that the two sides get the twelve jurors that both sides can live with after removing the jurors that one side can't live with.

Once the trial starts, the jury will hear three types of evidence: (1) live testimony from witnesses, (2) deposition testimony; and (3) exhibits (e.g., documents, photographs, physical items like a gun or clothing). Deposition testimony is more common in civil cases than in criminal cases but sometimes the parties will agree to use a videotaped deposition instead of live testimony. Regardless of the type of testimony, there will often be objections from one side that the other side is trying to introduce improper evidence. And here is where the judge plays a large role in the jury experience. Some judges will allow lengthy "bench conferences" (where the two sides talk out the objection at the bench outside the hearing of the jury) while the jury is sitting in the jury box twiddling their thumbs. Other judges rule quickly and will highly discourage requests to approach the bench for routine objections. The best judges use recesses and conferences at the end of the day to work out the major issues, so that the jury's time is not wasted. The worst judges spend as much time during the day dealing with the attorneys as taking evidence. Things have changed with exhibits since my early days in practice. When I was a young attorney, exhibits were "published" to the jury by passing them to the jury and each juror would read the document and then pass it to the next juror. Today, most exhibits are published to the jury by projecting it to a screen (or displaying it on a tv) while the witness is going through the key part of the document.

The general trial process that the jury will experience after they are chosen is: (1) opening statements (in which the attorneys lay out what they expect the evidence will be to give the jury a context to understand the pieces of evidence as they come in) with the prosecution making its opening statement followed by the opening statement(s) of the defendant(s), (2) the government presents its evidence, (3) the defense presents its evidence, (4) rebuttal evidence, (5) closing arguments (government followed by defense with the government getting the last word in a rebuttal argument) and (6) the instructions from the court. In the federal system, some of the circuits (I do not know about the Eleventh, where Florida is) have "model" instructions which are suggested instructions which a court can use. Even if there are model instructions, it is ultimately up to the court (after taking suggestions from the parties) to decide what instructions to give. The only true requirements are that the court must tell the jury the burden of proof (beyond a reasonable doubt) and what "elements" it must find to be true before they can return a guilty verdict.

Once they get in the jury room, the jury is pretty much on its own for deciding how deliberations will proceed. The jury can send questions to the court. The easy question is asking to see certain exhibits. If the exhibit is "in evidence," the parties will usually agree that the jury can have it. But sometimes, an exhibit might be mentioned during the trial but not actually introduced into evidence. In that case, the jury will be told that it can't get the item. Similarly, it is rare for the parties and the court to agree (ultimately it is the judge's call) to answer questions about the instructions. The instructions (however poorly written, and some model instructions are indeed poorly written) are the instructions and are to be read by the jury in their "ordinary sense" with the jury having the responsibility for figuring out what they think the instructions say. On, hopefully, rare occasions, there might be a typo in the instructions (or a key phrase omitted), and the court might resolve that issue. But otherwise, the court will generally send back a response about the jury needing to refer back to the instructions to answer their question.

Once the jury reaches a verdict, it is not unusual for the losing side to ask for a poll of the jury. In criminal cases, a verdict has to be unanimous, and polling the jury gives a reluctant juror one last chance to say that they are not comfortable with the verdict (in which case the trial court can either declare a mistrial or resume deliberations).

How jurors experience a trial depends a lot on the trial judge. A good trial judge tries to minimize the hardship on the jurors. She will try to resolve as many issues as she can outside of normal business hours, take reasonable breaks during the testimony, encourage the parties to eliminate unnecessary witnesses, and try to use as much of the day as possible actually hearing evidence. In short, she will do her best to get the case to the jury as quickly as possible and minimize the time when the jury is sitting in the box or in the jury room while nothing is happening. A bad judge does none of these things. I once had a trial in which recesses were routinely 15 to 20 minutes longer than what the judge had announced, by the fourth recess, the jury laughed when the judge said there would be a 10-minute recess. Needless to say that judge quickly developed a reputation for wasting the jury's time.

---

A.R. in Los Angeles, CA, writes: I'll relay two perspectives—one as a juror and one as a lawyer during jury selection. First, it should really be called jury de-selection because that's what the attorneys are doing. You're hoping you can root out not only those jurors who should be excused for cause but also those that you can discover will hinder your case. The actual selection has already been done when the jury pool walks in.

When I'm called for jury duty, as an attorney, I'm usually one of the first panelists excused, but in one criminal case—a particularly gruesome murder-arson case—neither side excused me. I was shocked to find myself still sitting in the jury box when both lawyers said "I accept the panel as currently constituted." And it was a really rewarding experience—I've never understood why everyone wants to get out of jury duty, as I highly recommend it. The jurors I had the privilege of serving with all took their jobs very seriously, listened carefully to the evidence and deliberated thoughtfully. It was difficult and somber work, and we were all affected by our ultimate decision to find the defendant guilty, even though we were confident in the verdict we reached. I will say, though, that I understand why attorneys are kicked off—I had to deflect lots of questions from my fellow jurors who seemed to want to rely on my expertise. I had to remind them that, as jurors, we were all experts in this particular case and only the evidence and the law, as the judge gave it to us, mattered. In deliberations, I made sure to speak last so as not to overly influence their opinions. I was careful, but another attorney in my position could use that to their advantage to sway the outcome.

In conducting voir dire for my own cases, I have two rules for my peremptory challenges: (1) no jerks on my jury, and (2) no anti-government jurors (No. 2 is often a subset of No. 1.). When you need a unanimous jury, the last thing you want is a juror who only wants to disrupt the process or disagrees just to disagree—we all know the type. And these are usually easy to spot—just get them talking, as they're full of grievances and have unshakeable opinions about everything. So, it's not a matter of identifying Trump supporters, it's a matter of excusing those jurors who will never reach a consensus about anything—those types just happen to often be Trump supporters. What's interesting about some Trump supporters, though, is that they long for strong leadership and are often very strict rule-followers, so it's a mistake to dismiss them out of hand. For No. 2, as a government lawyer, I obviously don't want jurors who are hostile to me just because I work for "the man." Those are easy to spot also with questions like, "Juror No. 4, do you think there are too many rules about what you can and can't do?" Or "What is your opinion of mask mandates?" Again, just get folks talking and then ask if anyone else agrees with what Juror No. 4 just said, etc. In my most recent case, one juror said to me, "I'm looking for the liar. One of you is lying to me." He was absolutely right. I kept him—I knew who the liar was, and it wasn't me or my client.

---

R.H. in Santa Ana, CA, writes: Back in the day, Kentucky Court of Appeals Judge Michael O. McDonald was in the jury pool for a case. Each attorney thought the other attorney would surely strike him peremptorily, so neither did.

They tried the case and the jury went out.

It took five minutes for the jury to elect him as foreman, five minutes for him to explain why the prosecution (or plaintiff) had not met his burden of proof, and five minutes for them to vote for the defendant.

This anecdote is told to all law students in the Commonwealth at some point.

Years later I was summonsed for jury duty. Both of the opposing attorneys were classmates of mine. Both of them struck me, using their peremptory challenges. (I don't blame them one bit!)

---

J.G. in Santa Monica, CA, writes: I recently served 3.5 months on a murder trial in L.A. County. There were actually two juries in the same courtroom at the same time. One for a boyfriend/girlfriend duo charged with murder and our jury which deliberated on a murder charge for a defendant who was the stepdaughter of the deceased. The deceased was a 72-year-old man murdered in his own house by the boyfriend/girlfriend duo, who, along with the stepdaughter, transported the body (in the deceased's own car!) to Joshua Tree and attempted to burn it.

I started my experience as the 8th and final alternate juror on the stepdaughter's case. She was charged with aiding and abetting the murder, which in California carries the same weight and punishment as being charged with murder. Though it was clear the defendant did not take part in the physical murder of the deceased, she did bring the duo, friends of hers, to the residence where they stayed a couple of days, renting out a room Airbnb-style from the deceased before killing him.

While the case involved drug use, gang affiliations, the alleged murder of over a hundred trans prostitutes, a Perkins operation, autism, credit card fraud, and the dubious actions by the deceased man's own wife, who slipped out of the house at the time of the murder, one of the things I thought was interesting for your purposes was the jury deliberation.

The duo's jury received the case after our jury, but they came back within hours with two guilty verdicts. When my jury received the case, I had become the lone alternate juror, which meant I spent the first week of deliberations in the courthouse's jury assembly room reading my book and E-V.com (ha, ha). After the first couple of days of deliberations I was informed by a member of my jury whom I had befriended that our jury was essentially deadlocked. The raw numbers for the twelve person jury was 8 for conviction and 4 for not guilty and that one member was already discussing the possibility of a mistrial. I was stunned. My friend didn't tell me who this one person was (she wasn't supposed to discuss the case) but I had some idea who it might be. It turns out I was wrong.

By day five of the deliberations I was summoned to report for service due to a juror having a family emergency and needing to be recused. Finally, I would get my chance to weigh the evidence with the other jurors. Remember, this is 3.5 months into my jury service. I came into the deliberation as a definite "guilty" and to this day maintain that stance. It turns out the one major holdout on our jury was a New York City transplant who was also a lawyer. I knew him from before the trial, as his son and my daughter had been classmates a few years previous in elementary school. Because our case involved a good degree of circumstantial evidence, he was a "not guilty" essentially from the start and he refused to deliberate. The rest of the jurors hated him. After a couple more days of deliberations we informed the judge we were impossibly deadlocked and he declared a mistrial.

In the hallway outside the courtroom we were given the opportunity to talk to the defense counsel and the two DAs. The first thing I said to the lead DA was a suggestion that, going forward, when it comes to voir dire, lawyers should avoid putting anyone with a legal background on the jury. He told me that there were two modes of thought on this very matter. Sometimes it seems a good idea to have someone with a law background on the jury since you know they will be able to follow the logic of the case. Other times, their meticulous nature will make them hard to persuade with circumstantial evidence. Keep in mind that the people's case did present evidence our defendant had solicited her stepfather's murder a year prior to the actual crime, but that evidence was provided by a person with a criminal record.

In brief, voir dire is the often the most perilous part of a case. The DA went on to tell us a story about how he once had a juror who would not make eye contact. So during his closing remarks, he positioned himself right in front of this woman, between her and the DA's own PowerPoint presentation. Still, she refused to look at him. After the jury got the case, the DA heard back that there was one lone "not guilty" holdout. It was her. He just knew it. In the end, the jury came back with a guilty verdict. It turns out that not only was the non-eye-contact woman actually a guilty vote but that she had been elected foreperson of the jury and was responsible for changing the final holdout's mind. It goes to show, you just never know.

---

C.R. in St. Louis, MO, writes: I have served on a couple petit juries and also a grand jury for three months. You get many opportunities if you live in the city. In the grand jury, we heard a lot of cases and most were "true billed" or approving indictments. We did a good job of asking questions when things were a bit flimsy or when eye witnesses were suspect. In all, we heard a lot of terrible things—especially on the one day a week set aside for domestic violence and child abuse cases. It was overall a great experience, though.

On the petit (normal trial) juries, the attorneys generally tried to set up the thinking of the jurors and frame their case through their voir dire questions. One such case was where the prosecutor asked if jurors would be able to conclude that someone was "in control and possession" of something if it was in their bedroom with them but not on their person. That was critical later to whether the accused was selling heroin that was found in the bedroom he slept in at his grandmother's house. He had to be in control and possession of it in order to be found guilty of one of the charges. We found him guilty in part because, as the foreman, I walked through the motions of "Did he possess it by way of controlling the bedroom?" This was more convoluted than it seemed at first blush, when the defense tried to muddy the waters.

---

J.W.N. in Walnut Creek, CA, writes: I served on a jury in San Francisco. It was a civil trial where a landlord (plaintiff) was renting a separate dwelling on their property to the defendants. The landlord evicted the defendants under the premise that they would be moving family into the separate dwelling, but the defendants refused to leave as they suspected the landlord would put the property back on the rental market to reset the base rent amount as a workaround to San Francisco's tenant-friendly rent control laws. So, the landlord sued the tenants to force an eviction.

I was the second juror questioned out of the whole pool and was agreed on by both plaintiff and defense attorneys. They asked if I rented (I did) or owned my property, my line of work, etc. My part of the story is straightforward.

What surprised me was the judge's attitude during voir dire. Many people, seemingly wanting to get out of serving on the jury more than anything, explained that they were landlords and that they would be biased, but he wasn't having it. Sure, the defendants' attorney rejected some of them, but the judge made it very clear that he didn't want to hear about people's biases and to only focus on this particular case and the facts at hand.

The twelfth juror who was selected spoke broken English, and said as best he could that he couldn't understand what everyone was talking about. Shockingly to me, both sides agreed to him and he was the final juror.

We heard the case and deliberated our decision, and we were stuck at 8 in ruling for the plaintiff where 9 is needed. Turns out that the 12th juror finally understood what was going on during our discussions, said he was a landlord, and he (biasedly) joined the group for the plaintiff making it 9 votes. Evidently he didn't understand the judge's earlier instructions. Case closed.

We're trying to keep this to two entries per week, so it doesn't get to be too much. In the next one, likely to run on Friday, we'll take a look at the presentation of court cases from the jury's perspective. (Z)

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.

To download a poster about the site to hang up, please click here.

---

Email a link to a friend or share:

---The Votemaster and Zenger