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There's technical difficulties here at the beginning of the show. Juliana in the control room, can you hear me right now? Okay. I'm on the air. Okay. Listeners we're going to put up with telephone quality for the first couple of minutes here, but then we will get it straightened out, and it's going to be well worth it because we have the great presidential historian Doris Kearns Goodwin on the show today in our second hour.

She's got a new book called An Unfinished Love Story: A Personal History of the 1960s. It's part memoir about her life and her late husband, Richard Goodwin's life, but also very much American history as Richard Goodwin wrote, President Lyndon Johnson's seminal Great Society Speech that in a way has framed Democratic party politics ever since, since 1964. We'll play a classic soundbite from 60 years ago this spring, and much more with Doris Kearns Goodwin coming up.

Talk about making presidential history, as we speak, day one of jury selection is underway in the first-ever criminal trial of a former US President, Donald Trump, of course, in Criminal court in Manhattan right now in the so-called Hush Money case falsifying business records allegedly to cover up the fact that it would look bad in the 2016 presidential campaign that he was paying former porn star Stormy Daniels to stay quiet about an affair she says they had.

Trump is pleading not guilty. The first big question in this historic case is, can they seat a fair jury? We will open up the phones on the question. Could you be an impartial juror in a criminal trial of Donald Trump? Why or why not? 212-433 WNYC, 212-433-9692. This case, remember, is being brought by the Manhattan DA Alvin Bragg, and we welcome in former assistant Manhattan DA Catherine Christian for lots of context and maybe to grill some of you prospective hypothetical jurors. Okay, no grilling. This is a no grill zone, just respectful questioning. Catherine, always great of you to lend us your wisdom and experience. Welcome back to WNYC.

Catherine Christian: Glad to be here, Brian, on this, as you said, historic day.

Brian Lehrer: Could you start by setting the basic scene for us? What's probably happening down there right now?

Catherine Christian: Well, I've just seen on TV, the defendant has entered the building. He just about 20 minutes ago, was outside the courtroom, surrounded, of course by court officers and Secret Service and his attorneys. What typically happens, this is the day of jury selection. The prospective jurors are called into the courtroom. However, there's one caveat. Those of us who practice New York State criminal law, are a little confused. Typically, before jury selection, there's something called a Sandoval hearing.

This is a very New York-specific hearing. What is a Sandoval hearing? When Donald Trump has said over the weekend that he intends to testify, I don't believe that, but assuming that he is, the prosecutors have to, in New York, tell the defense and the court what prior bad act criminal convictions, vicious and moral acts they intend to cross examinee the defendant about. The judge will decide whether they can or cannot, and that's called a Sandoval hearing. It's named after a case called People v. Sandoval.

That hearing is typically done before jury selection, where the prosecutor outlines, and in this case the prosecution, I don't know what they are, but has alerted the defense they have 13 prior bad acts of Donald Trump that they are seeking to cross-examine him about if he takes the stand. Then the judge will determine whether one, they're just too remote, meaning they happened years ago, they are too prejudicial, for instance. He's not going to allow them to be cross-examined about his three open indictments. He has the Fifth Amendment right. He's not going to be allowed to be crossed on that.

Also, the judge will not allow the prosecutors, if Trump takes the stand, to be cross-examined about his verdict, the civil fraud verdict, where he was found liable for falsifying business records. Why? Because he's being charged with falsifying business records here. They're too close, but he should be allowed-- I'm saying he, there's also females on the prosecution team.

The prosecutors should be allowed if Trump, and I don't believe he will, but if he testifies, to cross-examine him about the defamation, two different defamation verdicts against them. Why? They're false statements. They go right at the heart of veracity and credibility. I'm looking to see if that hearing is done sometime today. Beyond that, assuming we're just going straight to jury selection, there are probably 500 prospective jurors who have been paneled. They will be anonymous to the public.

They will be known as prospective juror number A1, A2, A3. Then it will start off with the judge basically putting 18 people, we call it in the box where the jurors sit. Then the questionnaire, there are 42 questions on this questionnaire that the court prepared with assistance or with input by the defense and by the prosecution. Then one by one starting with the prospective juror number A1, the questions will be asked.

Now, it's interesting, the judge in the instructions say to the prospective juror, read the question to yourself and then answer it by just saying I live on the upper East side. A number of judges don't do it that way. They actually read the question, why? Because you might have a prospective juror who one, can't read, can't read very well, has forgotten their reading glasses. Then you're put in the position of one, the juror being embarrassed, the prospective juror being embarrassed. Also, it will take a lot of time.

Many judges will just say, "Question number one, prospective juror A1, without telling us your address, where do you live?" Then that judge will start asking the questions. We'll see whether or not that's how Judge Merchan is going to do it. If he does it that way, it'll move quicker than having the prospective juror sitting there and then reading the questions to themselves and then not know whether or not they can read well. That I'll be looking for.

Whether or not you can pick a fair and impartial jury in Manhattan, I think you can, and you hope that people are honest. You hope that someone who says, "I think that Trump is an existential threat to democracy and there's nothing you could say to convince me of otherwise, and I'm going to vote guilty." You hope that person will be honest and say that and then say, "I can't be on this jury." On the other hand, you hope that someone who says, "I hate prosecutors, even though I'm not a fan of Trump, I believe that I could never, ever, ever vote to convict Trump or anyone else." You want that person to be honest about that and get off the jury.

Then what you're looking for, defense are looking for different jurors than prosecutors. The prosecutors, I always will look for people I thought would get along with people who when they got back in the deliberation room, would be able to talk and just have a discussion. If I'm a defense attorney, I want that person who, at the conclusion of the case, who says, "I don't care what any of you think, this is my position and I'm sticking to it. I say acquittal." It's going to be interesting.

I think strategically the defense are going to try their best to prove that this liberal Manhattan, you can't have a fair and impartial jury and they're going to try to have as many challenges caused is a challenge to a juror. Are you asking that the court remove the juror because through their answers, they have shown a state of mind that shows that they're precluded from coming up and listening to the law and the evidence as they're instructed and can't be very fair and impartial?

The jury selection, in my view in many trial lawyers, is the most important part of the trial because if you end up with a jury that is the wrong jury and that's for both sides, you've just lost the trial. It's not very scintillating for observers, it's not very interesting. It's very tedious, but it is very, very important part of the trial.

Brian Lehrer: Thank you for that long answer. It gave us lots of time to fix the technical problem and get back in studio quality. Good morning again, everyone and for real this time. With me and former assistant Manhattan DA Catherine Christian. Before we go down through some of the questions on this 42-question questionnaire for prospective jurors, some of which are really interesting, and I think it'll be very illuminating for our listeners to hear what some of the things are that some of their neighbors, perhaps if they happen to live in Manhattan, are about to be asked this morning. Let me ask you to go back and elaborate a little bit on what you said about what they can or cannot bring in with respect to other things that Donald Trump has done or allegedly done. I thought in general, the standard is each case has to stand on its own. If somebody committed a similar crime in the past or did something else in the past that reputationally might be related to the charge at hand, they can't bring it in, they have to stick to the facts in the case, but I'm no lawyer, is that wrong?

Catherine Christian: Well, I was talking about if, when the defendant testifies and Donald Trump has brought up that he's going to testify, again, I don't believe he will, but assuming he does, prosecutors can't just get up there and just cross-examine that defendant on every bad act that they've ever done in their life. Before jury selection, the prosecutor has to alert the defense, "These are the prior criminal convictions." Now, Donald Trump doesn't have any. "These are the prior bad acts that I intend to cross-examine your client about," and then, of course, the defense will say, "No, no, no. Too prejudicial."

Well, the judge, the judge will stand and make the decision, and that's called a Sandoval hearing, and it's typically prosecutor will be allowed to ask or cross-examine questions of the defendant if those prior bad acts go to credibility, honesty, veracity, if it shows that the Senate has put his interests above society. Typically, in cases, defendants don't testify. It never even comes up because the prosecutor can't cross-examine. But in a case like this, where Trump is saying publicly, which I don't think is a smart thing to do, because jurors, prospective jurors are listening and some of them may be selected for the jury, and then when he doesn't testify, they're going to have in his head, "Didn't he say that he was going to be testifying?" But that's on him.

What will happen at this hearing, which is called the Sandoval hearing, the prosecutors will say, and again, they will-- I'm just anticipating what the judge will. I can't imagine the prosecutors going to say they want to cross-examine Trump about his three open indictments. That's just not going to be allowed there. He has a Fifth Amendment right. I can say they might want to ask about the Trump University, that they want to ask about the fact that he was found liable for defamation, making false statements about Jean Carroll, and then found liable, again, for defamation about making false statements about Jean Carroll, and this just happened in the past year.

They will ask about prior bad acts, and again, they have indicated, I don't know what they are, that they want to cross-examine about 13 prior ones, and the judge will decide, "Yes, no, yes, that's very relevant. It goes to his credibility. No, that happened 20 years ago, that's too remote." That's what I meant about that. In terms of the trial and what the evidence they can put on, you're right. It's just about the facts of the case, and you can't bring in things that are irrelevant, that they don't complete the narrative of the story that you're trying to tell.

It can't be something that is just to pile on or to prove that the defendant has propensity for doing a particular crime. That is, I'll call it a no, no. Prosecutors can't do that. Definitely not in New York, there's very strict rules. This judge has made some pretrial rulings that can be considered very fair to this defendant. For instance, the Access Hollywood tape, the defense did not want that played, did not want any mention of it. The judge said, "This is what I'm going to do. Prosecutors, you cannot play that Access Hollywood tape."

For people who don't know, that's the one where he's being interviewed by, I think it was Access Hollywood. His name is Billy Bush, and Trump bragged about how when you're a celebrity, you can grab women by the you know what. The judge said the tape can't be played. However, there could be a witness, I don't know who that witness is going to be who can testify to the content of the tape and the fact that the tape's existence. To prejudice, though, to hear it but talk about it is fine.

Brian Lehrer: That's interesting. Why that line? Maybe we should remind people that the Access Hollywood tape is relevant in this case, because correct me if I'm wrong, the allegation in the criminal charges here is that Trump paid the hush money to Stormy Daniels, that's not the crime. The crime is that he covered up the payments of the hush money, allegedly, because after the Access Hollywood tape became public during the 2016 presidential campaign, if it became known also that he was paying hush money to a porn star about an alleged affair, that they had that would hurt his chances of being elected. That's why the Access Hollywood Billy Bush Donald Trump tape is relevant here. Is that correct?

Catherine Christian: Exactly. Because it goes to his motive and his intent to commit the falsification of business records, which, that is the charge. He's not charged with election interference. He's charged with a crime that's New York-specific. It is illegal in New York to put false entries in your business records with the intent of defraud, and it becomes a felony if you do have the intent to commit or conceal another crime. That Access Hollywood tape goes to his intent, his motive. It's also very, the legal term is inextricably interwoven with the whole narrative of events and provides the necessary background for the jury, for the whole case.

This is why he did what he did, meaning the payoff and then the falsifying the business records, allegedly. That will come in. The prosecutors are going to be allowed to talk about the doorman, the Playboy model. Who are those people? In addition to paying off Stormy Daniels, those where the falsifying the business records come from. There are uncharged crimes. Karen McDougal was a Playboy model playmate, and she had a story to tell that she had an affair with Donald Trump. Well, Donald Trump's friend, David Pecker, who was the chief executive of AMI, which was the owner of the National Enquirer, did what's called a catch and kill.

Agreed with Michael Cohen that in order to prevent Ms. McDougal from revealing publicly that there was this affair and Donald Trump knew would hurt his campaign, they agreed that AMI would pay her $150,000 and for her story, make her sign a nondisclosure agreement. Now, the catch-and-kill part is, we got her story, but we're never going to publish it. Therefore, you got your $150,000, but guess what? You have a nondisclosure agreement. You can't discuss it, and we're also not going to publish it.

Also, there was a doorman, and apparently his story was false. He claimed that Donald Trump had a child out of wedlock. Well, he signed a non-disclosure agreement, and again, AMI, David Pecker, gave him $30,000 to keep him from telling that story. The judge has allowed, not that there was an affair with Karen McDougal or that there was a alleged out-of-wedlock child, which is actually not true, but will allow some evidence of that to come out, that there was a payment made by AMI to this person so she would not tell a story, unflattering story, and also to the doorman.

It's very limited because, again, the judge is-- this is a very good judge, does not want to be prejudicial, and if there's a conviction, does not want to be reversed. It will be allowed to come out that the fact that these people exist and the fact that there was a payoff, but all of the details won't be allowed to come out. Again, because of the motive, intent, and it's inextricably interwoven with the narrative-

Brian Lehrer: Interesting.

Catherine Christian: Yes.

Brian Lehrer: Those things aren't being charged as crimes, even though those were also cover-ups of alleged Donald Trump sexual encounters.

Catherine Christian: Exactly.

Brian Lehrer: Why? Because Trump himself did not make the payments and falsify business records, because, Pecker as owner of a private business, the National Enquirer was allowed to do this and there was no crime therefore?

Catherine Christian: Yes. Well, AMI entered a non-prosecution agreement with the Southern District of New York, so there were no falsifications that we know of of the Trump Organization business records related to Karen McDougal or the doorman. They only relate to Stormy Daniels. That's why. Also, that non-prosecution agreement, the Southern District, cannot be used again. The judge being fair, the prosecutors cannot argue that because David Pecker's AMI entered a non-prosecution agreement, this is probative of defendant's guilt. That cannot be allowed.

Also, the fact that Michael Cohen pled guilty in federal court and his pleas were exactly related to trying to influence the election by being a participant in these payoffs. That cannot be argued by the prosecutors that he pled guilty. Therefore, this is proof the defendant is, or it is proven of the defendant's guilt. Again, the judge being very, very fair and saying, "No, prosecutors, you can't ask that." I've heard some commentators on TV saying, "Well, this is proof that he's guilty," because they're going to learn that Michael Cohen pled guilty and that-- No, they're not. They're going to learn that he pled guilty, but the prosecutors can't argue to the jury, this is proof that Donald Trump is guilty. This is probative of Donald Trump's guilt. That will not be allowed in courtroom. That will not be part of the evidence.

Brian Lehrer: All right. You're giving us such interesting background that we haven't even gotten.

Catherine Christian: Might be a little too lawyerly. I'm sorry.

Brian Lehrer: No, really, really interesting. It gives people a window in to what the prosecution can do, what the defense can do, and as far as what the judge can do, and we'll get to the jury selection questions in a minute here with former assistant Manhattan DA Catherine Christian. As far as what the judge can do, we have the first little bit of breaking news from the courtroom. According to the AP, the Judge, Judge Merchan overseeing Trump's hush money trial, denies a request from the defense team to recuse himself from the case.

Of course, Trump has been out there claiming that the judge is biased against him through all the pretrial period. Only today, this morning, as this begins, they file a motion for the judge to recuse himself. Take us a little bit into that. On what basis does the judge have the leeway to decide that he can or cannot be impartial in this case?

Catherine Christian: They actually filed this motion, I think about a week ago, and we were all waiting, okay, when is he going to decide this? I knew the judge was going to say no but it would have to have been before again, jury selection. That was one of those things we were waiting for. The defense have -- this was the second time they filed this. They're basing on the fact that the judge's adult daughter, who does not live with him worked for, and it's unclear whether she still works for a company that did digital marketing, helped campaigns all Democrats, Biden, Kamala Harris, and therefore, according to the defense, that means that the judge will have a personal interest in the outcome of this case being that the Donald Trump should be convicted because his daughter allegedly does.

That's who he, they made the motion, it's completely appropriate to make a motion. When they did it the second time, I think it became a little bit frivolous, the judge, the first time the motion was made. Also, the judge had made very minor campaign contributions a number of years ago to, I believe, the Biden campaign or the Democratic Party. I say very minor, I think it was like $50.

A court committee, it's called the Advisory Committee on Judicial Ethics, issued an opinion saying that the judge does not have to recuse himself in their opinion. That the fact that his adult daughter is involved in politics that may be adverse to the defendant who's on trial is not relevant. Particularly, as I said, she's an adult and doesn't live with him. They have already came out with, and they're independent neutral decision.

Believe me, there are times when they say, "Judges, you're wrong. You shouldn't have done that." This is not just Advisory Committee that just rubber stamps what judges do, they're not.

It's no surprise that the judge said, "I'm not going to recuse myself." I also believe that they, the defense, are asking the Appellate Court in New York, it's called the Appellate Division, and it would be the Manhattan. They're located in Manhattan, the Appellate Division First Department, which handles appeals from Manhattan and handles appeals from the Bronx.

I think it's fair to say they also will deny that last week the Trump lawyers went to the Appellate Division and requested that they stay the trial until they make a decision. Every day there's a judge assigned for those type of applications. That judge said, "No, we're not staying the trial." This trial will continue. There will be no stay from any Appellate Court. If Donald Trump is convicted, he will have a right to appeal and I'm sure he will appeal. Every motion that was denied will be brought up in the appeal should he be convicted.

Brian Lehrer: We will continue in a minute with former assistant Manhattan DA Catherine Christian, as the case being brought by Manhattan DA Alvin Bragg is now in court today, the first criminal case against Donald Trump, the first criminal case against a former president of the United States ever to go to trial. When we come back, we will get to the jury selection details. So fascinating. How do you seat an impartial jury in a case involving Donald Trump in Manhattan no less? 212-433 WNYC.

Thank you for your patience. Those of you who have been hanging on to answer the question, could you be an impartial juror in this case? We see your text messages coming in too, some really interesting ones. We will get to jury selection. We'll go over some of the very interesting 42 questions on the questionnaire for prospective jurors that the judge released. Stay with us. Brian Lehrer on WNYC.

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Brian Lehrer on WNYC. As we speak, Donald Trump in the courtroom, along with the judge of course, prosecutors, defense lawyers, and hundreds, I guess, it's hundreds of prospective jurors who hopefully they will find 12 people who believe and who both sides believe and who can actually sit impartially in this falsifying business records. Case listeners, could you be an impartial juror in a Donald Trump criminal case? 212-433 WNYC, 212-433-9692. There was a good backgrounder-- My guest is Catherine Christian, former assistant Manhattan DA.

There was a good backgrounder, Catherine, in the Washington Post this weekend by former WNYC reporter Azi Paybarah, who asked some Manhattan residents if they could be impartial jurors. One interesting response was, "I don't think so," because it's not like he's someone that you don't know and he's so divisive that you either love him or hate him. That's one response.

A listener just texted us, "I would absolutely be able to render an impartial and just verdict. To not do so would be to undermine the integrity of the very system Donald Trump threatens to destroy." To me, that answer by the texter, is a double-edged sword, right? Yes, I would be impartial because Donald Trump doesn't believe in impartiality in our justice system. I don't want to play into that. Of course, I would be impartial. In saying it that way, this listener is passing judgment on Donald Trump, right?

Catherine Christian: Yes. If she left out that last part, I would've said yes. If she left out that, Donald Trump wants to destroy. That's what you want. You want someone who, yes, I'm a Democrat. Yes, I didn't vote for Trump, but I believe in justice, and I can follow the law, any evidence. If the prosecutors, if I listen to this, and no matter, I don't believe they prove beyond a reasonable doubt, I'm going to be honest and say that. That's what you want. It may be hard, there's no way, and this is my view, the defense part, if you have such a negative opinion about Donald Trump, if you believe he's an existential threat to democracy, I believe no way that you can actually, with the straight face, say you could be fair and impartial.

You could believe that, but I'm talking about with a passion. You go to anti-Trump rallies, like there's some questions here about, you can't ask someone if they're a Democrat or Republican, but if you like a participant protest constantly about them, it's like there are people every day. It's like, I have to get him out of office. That person can't be fair and [unintelligible 00:29:49]. On the other side, if you wear a MAGA hat and you go to Trump rallies, and you think the government under Biden is corrupt. Even though this trial has absolutely nothing to do with the federal government, it's the state, I always took pride when I was a prosecutor and I was very happy that state prosecutors in New York were referred to as people, not like my federal counterparts who are referred the government. I always said I don't want to be referred the government, people hate the government. If I have to go to court and be referred as the government, they're going to hate me.

In New York, it's the people of the state of New York and the prosecutors are called people. It has nothing to do with DOJ or the federal government prosecution. I do believe in left-leaning Manhattan, you can find jurors who can put aside whoever they voted for, and just listen to the evidence because that the jury system, and as that last texter said, a little bit partial, but it is. That's how it's supposed to work.

Putting aside Donald Trump, you have like a horrific rape case, horrific multiple murder case. You shouldn't be looking at the defendant as the raped, as the murderer. It should be the accused rapist, the accused murderer. Let me listen to the evidence. No matter how horrible the facts are, if they don't really point beyond a reasonable doubt to this defendant on trial, you're supposed to say, "Not guilty. I'm so sorry about this victim. I'm so sorry about this victim's family, but I don't think the prosecutors have proven that this defendant did it."

I always bring it back away from Donald Trump and just type of cases that are tried every day in that courthouse, and jurors are finding guilty most of the time, but they're also finding not guilty. They're finding not guilty on very, very violent cases because as much as it pains them that this victim is not getting justice today, they think it's an injustice to find this particular defendant guilty because the prosecutors did not prove his guilt beyond a reasonable doubt.

Brian Lehrer: How about this one from another listener wrote in a text message that doesn't quite go as far as the other texts that I read in terms of denouncing Trump, but this text says, "This case is so public, it is not possible for anyone to have not formed an opinion. However, despite my dislike of Donald Trump, I am also capable of critical thinking, if the evidence presented does not show that he is guilty beyond a reasonable doubt, I would have to say so. That would be my duty as an American." If you were a defense lawyer, would you try to avoid that person?

Catherine Christian: It depends because you're going to have follow-up question because you can make that statement as the juror, and then the job of the defense attorney is like, "Let's probe this a little bit." Also, the job of prosecutor is I want to probe it to prove. "See, he is actually what he said he is. He can be fair." That's what the follow-up question because it's a very extensive jury questionnaire, but the lawyers will be allowed to ask follow-up questions, they won't be allowed to ask the exact same questions over and over, the judge will cut them down, but that's where the probing where you try to parse it out a little bit.

If I'm the defense attorney, I'm going to try to prove despite what this guy says, he really has the state of mind that precludes him from being impartial. Now you have unlimited amounts of challenges the cause both sides, so you can challenge the cause. Now, the judge can deny it, and you try to use those because you only have a limited amount of peremptory challenges. The peremptory challenge allows the lawyer to get rid of a juror without having to give a reason unless it's obviously you can't. You can say, "I don't like the color of his tie", but you can't say I don't like the color of his skin.

Assuming it has nothing to do with race or gender or religion, you don't have to give a reason, but you can run out of those 10 very quickly. I can imagine on a case like this, both sides are going to run out of those 10 very quickly. Particularly for the defense side, they're going to try to use their cause challenges so they don't have to use the peremptory challenges.

Brian Lehrer: Here's somebody who definitely would not get seated. Listener writes, "I'd say if you don't believe that Donald Trump is an existential threat to democracy, then you can't be impartial. [laughter] Folks on the jury should know the basic facts," writes this listener. If you don't believe that Donald Trump is an existential threat to democracy, you can't be impartial. That person is not going to be on the jury. Esteban in Brooklyn, you're on WNYC. Hello Esteban.

Esteban: Hi, Brian. Thanks for having me. Greetings on this very beautiful Tax Day to both of you, Ms. Christian. I am calling because I served the jury duty last year in Brooklyn. As many people who have, we witnessed the efforts people make to get out of it. It becomes this often, not always, a scramble for people to get out of it. I was interested in serving, so I was not doing that, but in this particular case, there is a large incentive to do the inverse, I would imagine to, at all costs, try to get on the jury not just to participate in such a landmark legal case, but there have been a lot of payouts for writing memoirs post-trial.

It's just about the privacy of deliberations, but I think you as we witnessed from O.J. Menendez and all the books that came out after, you can write jurors can share and then profit off of that memoir. I'm wondering to what extent the people who will downplay any pre-existing opinions they have in order to participate not just in this, or for either reason, whether it's just to participate and be a part of its certainly more case, or they see [unintelligible 00:36:02] the end of the tunnel.

Brian Lehrer: Catherine?

Catherine Christian: Well, that's what's called the stealth juror, which both sides don't want. Now, first of all, there's nothing wrong if someone on a jury and then they later on write a book about their experience, whether they voted to acquit or convict, but you don't want someone who is, first of all, you're going to be lying. Who's, "I really want to be on this jury, because I want to find him guilty, or because I want to find him not guilty." You don't want that. That's what the questioning is about.

That's why I said jury selection is the most important for trial because you're hoping both sides that you pick the right juror. People call it a process of deselection, I call it a process of elimination. You eliminate the people who you believe aren't good for you, and then you end up and say, "I hope this is the right jury." Yes, that's the self-juror. In each way, if you're someone who just wants to write a book, but you say, "I'm going to be fair and impartial, I'm just going to write a book about my experience." That's one thing, but if you're someone who's going on, because you want to convict or you want to quit, that what you're hoping both sides and the court not to do.

The judge is very good, has said he's going to do and a lot of judges do this. People who self-identify and they say, "I can't be fair, I can't be impartial, he's an existential threat, or I'm a MAGA person, in fact, I'm going to go to a rally right now." The judge is not even going to really question him anymore, and just say goodbye. Those will be gone. Or someone who says, "I can't be fair and impartial because my loved one is very ill, and that's all I'm going to be thinking about during the trial." Those people you also want to get rid of because you don't want someone there who's going to be distracted.

The judge has said, "I'm going to get rid of those people right away, we're not going to keep them there all day." What usually happens in the real world for a jury selection, judges make you stay all day, because some people have heard the magic words of getting off the jury is, "I can't be fair and impartial." Well, judges have learned that trick, and so they say, "Fine," and then go back to the jury room. You really don't get off the jury for that day, you still have to ruin your whole day.

In this case, because it's going to take so much time, the judge is like, and he knows that there is strong opinions. He's just going to get rid of those people right away.

Brian Lehrer: Esteban, thank you for your call. Another listener in a text post kind of the opposite scenario of Esteban. Esteban was saying, "Well, people may want to get on this jury." He was saying perhaps for financial gain, they could write a memoir later on, maybe there are people who are going to be stealth jurors, just because they want to help Donald Trump or they want to hurt Donald Trump. Somebody else wrote that they would be afraid to be a juror in this case, because Donald Trump's goons, as the listener put it, would threaten the person's life. You think there's going to be a lot of that? We know about Daxing and all this other stuff that goes on.

Catherine Christian: Oh, yes, that's why the judge has a limited gag order. One of the prongs of the gag order is that Donald Trump can not make or direct others to make public statements about any prospective juror or juror and that's also why we the public will not know their names. The parties will know the names but not the public because you don't want his fans to then, as you said Dax them or say, "I know you're on the jury, you better do the right thing." That is a legitimate concern because we've seen what Donald Trump says about people he doesn't like and then has the reporters do. I don't know whether this is a fake but apparently this weekend, Donald Trump posted on his, I guess we call through the socials, he called Michael Cohen a liar. That to me is a violation of the gag order, Michael Cohen is a witness, and if you're talking about the credibility of a witness before they testify, which calling someone a liar before they testify, to me is a violation of the gag order. Now, I don't know whether-- there's often fake truth social posts that people put up for Donald Trump, so I don't know if he really did that or not. I would assume that the prosecution has verified that if it's true and will bring it to the court's attention today. Then the question is, what will the judge do?

Now, of course, Michael Cohen is a liar, he's been convicted for lying. Just three weeks ago, a federal judge just refused to terminate his supervised release because he, according to the judge, lied either when he testified as a civil fraud trial or when he pledged guilty. Donald Trump is specifically prohibited from making statements like that publicly about witnesses, and we'll see what happens with that issue.

Brian Lehrer: Also in that Washington Post backgrounder this weekend, the former WNYC reporter now with Washington Post, Azi Paybarah, noted that Manhattan juries tend to have more women than men, typically 7 out of 12 are white, and only 1 Black juror, typically out of 12 in Manhattan. Does that sound like a jury pool and typical jury as you've experienced it as an assistant Manhattan DA?

Catherine Christian: No, but I have seen that there were not a lot of Black people in the perspective panels, the pool, or other persons of color, I have seen that. In terms of more women than men, that, no, I've seen half and half. I once saw a jury that had-- I was supervising and I sat there and I said, "Oh my goodness, there are eight men on this jury." That's not been my experience either personally or supervising and watching. It has been my experience that you do not see a lot of persons of color.

Often remember jury selection, jurors, it's hard to, if you have a day job, to be sitting on a jury, particularly for months. It's a hardship and judges will often allow-- like I said, look, I'm the sole support of my family. I don't get paid leave, I don't-- those people often are not on the jury because they don't have the luxury of having paid leave. That has not been my experience, that's [unintelligible 00:42:50] more emboldenment. Yes, it has been my experience that there are not a lot of Black people either on the jury or who actually are in the pool to select, which is shocking because it's Manhattan, but that's the way it works.

Brian Lehrer: This 42-question questionnaire that the judge put out for prospective jurors. Some of the questions are ones you would expect. Question 21(b), "Do you have any political, moral, intellectual, or religious beliefs, or opinions that would interfere with your ability to render a verdict in this criminal case?" Question number 29, "Have you a relative or a close friend ever worked or volunteered for a Trump presidential campaign?"

Question 10 through 12, are about the media. "Do you get news from the New York Times, New York Post, Fox News, MSNBC, TikTok?" They list a lot of others. "Do you listen to talk radio, question 12 or so, which programs?" Maybe Brian Lehrer Show listeners would be stuck on that basis, I don't know. Then there were also some basic demographic ones that surprised me, and they came right at the beginning, maybe these are just standard, Catherine.

Catherine Christian: Those were standard, the first nine questions are standard questions that are asked for every case.

Brian Lehrer: For example, they're asking, "What neighborhood of Manhattan do you live in? For example, Upper East Side, Lower West Side, inward, et cetera, the way it's listed. What do you do for a living? Are you married? What do you like to do in your spare time?" Why are those relevant at all?

Catherine Christian: Those are the standard, every jury-- those are the questions that are always asked. Because again, our jury selection is not-- well, one, putting aside Trump's, if this case involved the defendant who lived in Washington Heights, you want to know whether or not this particular prospective juror lives in Washington Heights because there's the possibility do they know each other, do they see each other? That's basically the practical reason why you're asking where the area they live. Also, there are people who believe in stereotypes.

Well, this person lives in Tribeca, or the Upper East Side, so they might be more affluent, which is not necessarily true. This person lives on the Lower East Side, maybe they are not. It's practical because you want to-- do they live where the crime took place? They live where the defendant lives, you want to know that. Also, you want to know, again, the stereotype, Upper West Side versus someone who lives in Harlem, versus someone who lives in Lower East Side. What they do for a living is important, are they a lawyer? Are they a bus driver? Are they a sanitation worker? Again, that's a stereotype.

I want that blue-collar worker if I'm the defendant, or if you're a prosecutor, I want that depending on the case. I don't want some PhD. On a case, I want someone who's a practical thinker, again, that's the stereotype. In this case, I would think that the Trump people would want the, "blue-collar worker," if that even--

[crosstalk]

Brian Lehrer: We're going to be out of time in a sec. To that question of what profession, I noticed that on our board, and we're not going to have time to take any more calls, but two people identifying themselves as doctors were calling in to say that they could be impartial. They treat people impartially in their practices, so they could treat people impartially, on a jury. Doctors, thank you for calling in, even though I only had time to refer to your calls and not to take them. On a small number of lines that we have, it's interesting to me that two MDs called in, is that generally a preferred profession to seat somebody from or not really?

Catherine Christian: Well, it's so funny that they said they could because typically, it's the doctors, "I'm just too important. I can't do this."

Brian Lehrer: Oh, you can get off.

Catherine Christian: [laughs] Oh, that's interesting. Your reality, if you were an emergency room doctor, could you really say, "No problem, I can sit on the jury for six weeks." That's also a good point, they are right. If you're in an emergency room, you don't ask before, "Excuse me, I need to know whether you're a Democrat or Republican or not before I [unintelligible 00:47:17] you?" That's a good point, but it is not--

[crosstalk]

Brian Lehrer: I guess-- maybe--

Catherine Christian: I always said, if I looked to see, are you looking at me? Are you paying attention? Did you roll your eyes at me? Boom, I'm going to do params because that means-- because again, it's about--

Brian Lehrer: Attitude.

Catherine Christian: Yes, attitude.

Brian Lehrer: Maybe these doctors are calling in and saying-- hypothetically, they could be impartial jurors because all they need to do is call the talk show and say that, but if they were actually in the jury pool, they said, "No, no, I'm an MD, I have to get back to my practice." Catherine Christian, former Assistant Manhattan DA, thank you so much for all this context. That will obviously be very interesting to see how this first-ever trial on criminal charges of a former president of the United States proceeds. Maybe we'll have you back as it goes along and talk about some of the evidence as it's presented in the case. Thank you so much for today.

Catherine Christian: You're welcome so long.

 

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