March 8, 2020
By Mickey Friedman
I’ve served twice. Impressed with how seriously our jurors took their duty. And so my head hurt to watch the impeachment trial of Donald Trump.
Time and again the President’s attorneys and the Republican Senators acted in ways so contrary to basic fairness. Behaving in ways no ordinary American could behave in any court in the land.
I know this trial was special but special in the worst way. You can begin with the undeniable makeup of the Senate Republican majority. White, male, old. In Massachusetts, according to the state: “Prospective jurors are selected at random from the resident lists supplied to the Office of Jury Commissioner every year. Random selection means that if you’re eligible to serve, you have the same chance of being summoned as anyone else who’s on the jury list with you, even if you’ve already served before …”
And importantly, “Courthouses are chosen to help keep jury pools diverse — Jurors are randomly assigned to courthouses within their judicial districts, which is usually the county. The goal is to make sure that the jury pool in each court has a mix of people from all over the district, not just those who live closest to the courthouse.”
Next, for ordinary folks like you and me, there’s a process to assure our willingness and commitment to fairly evaluate the evidence in a trial – “Being summoned for jury service does not guarantee that a person will actually serve on a jury. When a jury is needed for a trial, the group of qualified jurors is taken to the courtroom where the trial will take place. The judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. Members of the panel who know any person involved in the case, who have information about the case, or who may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason.”
Those are the rules for ordinary Americans. But before the impeachment trial even began, Republican Senators like Lindsay Graham and Senate Leader Mitch McConnell declared in public that they were more than happy to violate the oath they took:
“Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you god?”
Instead, their commitment was not to listen to any evidence but to acquit the President/defendant as quickly as possible. If you, me, or any of our friends or neighbors announced to the judge that we already knew the verdict before the trial began we’d never be seated.
Findlaw reminds us about the rules of evidence:
“There are different types of evidence that can be used in a criminal trial, and a variety of rules that govern evidence. Some common concepts that come up when discussing the rules of evidence are:
“Circumstantial Evidence: This isn’t what you would call ‘smoking gun’ evidence, but rather some piece of information that strongly infers a set of circumstances. For instance, video surveillance showing that the defendant was on the same city block where a crime was committed at around the same time would be circumstantial evidence.
“Corroborating Evidence: Evidence that strengthens another piece of evidence, even if it isn’t directly related to the crime. For example, a witness claims John was at the scene of the crime at a particular time. If another witness has proof that John failed to show up to work at that same time, then it could be considered corroborating evidence.
“Hearsay: This isn’t given under oath or offered as official evidence, but merely stated out of court. For example, Fred says he heard that John was in a street gang; but without any evidence, Fred’s statement is merely hearsay (and not admissible).”
The constant claims about the Bidens and Ukraine were offered without any real evidence.
As Senators explained away their voting against documents and new witnesses, I imagined myself a juror in a robbery case, as witnesses swore they had seen John Smith hold up the grocer. Imagining what if someone just found about the trial and hadn’t come forward sooner, discovering he had shot video on his phone of the accused bowling halfway across town during the time of the robbery. Wouldn’t the jury want to know? The witnesses the Republicans said no to – John Bolton, Mick Mulvaney, Robert Blair and Michael Duffey – were critical witnesses and a fair jury would want to, and needed to hear them. Shame on the Senate.