Attorney: Manhattan jury pool selection 'tough' for Trump

My first guest knows something about this question. William J. Brennan is a veteran criminal defense

attorney

who, as co-counsel with Michael Van Der Veen, represented the Trump payroll corporation and the 2022 criminal case before the same judge and in the same courtroom. Brennan conducted voir dire in that case. And William J. Brennan joins me now. Bill, thanks for being here. What stands out about your

jury

selection

process? Good morning Michael. The biggest difference will be that in our case, same courtroom, same judge, same type of case, criminal. We had an entity, a corporate entity. Our client was Trump Payroll Corporation.

In this case, the former president of the United States will be in the courtroom. Big difference. Were there circumstances? I'm sure there were. Maybe you can share with us one where you thought someone should have been eliminated for good cause. And Judge Mershon thought otherwise. Yes, there were actually quite a few. It comes to mind that we had a questionnaire. I don't think it was as long as the one I saw in the current case. But I think questions 29 and 30 were something like: Do you have strong opinions about the former president? And that was 29 and 30. If so, would that affect his ability to be fair?

And we have a potential

jury

and, you know, I've been picking jurors since the late '80s, for a long, long time. And, you know, you think then you've developed some intuitive skills. But I saw a female juror probably in her forties dressed casually and with an Irish accent. She worked at the Irish Bar. Normally my type of work is a criminal case and she had marked 29 and 30 and it was late and I asked her, I see you have marked these with those strong feelings, whether positive or negative. And she said: I despise that man. And I guess maybe I had been beaten up from the long day.

But they said, well, look, you don't have to sugarcoat it for me. Say what you think. She said, I say what I think. I hate it. And you know, I've never experienced that. And I looked at Judge John and, you know, I just assumed he would meet my eyes. And we would say goodbye to her. But Judge Gershon, who was a very intelligent and capable judge, handled the matter very well. He said, well, wait a minute. He said: If I told you what the law is and instructed you about it, would you be able to put those feelings aside and give a just verdict?

And she said yes. And it has been my experience. And I suspect it was his experience when he was actively practicing law, that when a potential juror is in the courtroom and there's pomp and circumstance and the judge is in his black robe, most people say yes. So he kept her for the next round, which really meant that he was going to keep her. And we came up with a different strategy. She had a parental health issue that she was dealing with and we got her out that way. But, Michael, the problem wasn't that jury candidate.

It was like rows of shark teeth. Once she left, there were 50 more behind her. So, you know, we got rid of them. Let me ask you this. But they are different. Are you more concerned in voir dire when it comes to a Trump-affiliated corporation? Or what will Monday be like with the man himself? Are you more worried about representing him than about the woman with the Irish accent saying, I hate him, or about the sleeper, that she doesn't tell you anything and doesn't show you where she just hit the nail on the head? You know, she was obvious, right?

She had her fin out of the water. You can see, you know, you can see where she was on the boat. The problem is the sharks that are underwater. And when someone doesn't check any boxes and you just have a feeling, boy, I don't think this guy is going to be any good for us. And you say, well, you know, sir, on paper, you seem to be the perfect juror, but you are sure that there is nothing, perhaps something even in your own mind, that would make you pause or hesitate and that You are fine now.

Put me on, coach. You know I'm fine. I'll be great. That's the jury that scares me because, like you said, it's a sleeper cell jury and, you know, okay, it's important to remember where we go from there. You choose from the island of Manhattan. So what's up with the mentality that it only takes one, you know, the rule? If you only need one, you're only looking for that one. Who could ensure that there was not a unanimous verdict? Does that apply when it comes to Donald Trump or a Trump-related affiliate? I think that applies in any criminal case.

Look, we look at every case we decide to try with an eye toward winning. But many times in criminal law we play for the loose ball. A unanimous 12-person jury is needed in most jurisdictions to obtain a conviction. And if there is a hung jury, that hung jury can really be a game-changer. And I think it does apply. But I think it's more difficult when the defendant you know is this particular defendant and it's just the island of Manhattan that provides the potential jury

pool

. Well. Bill, you are uniquely qualified to address this topic. As if everyone was wondering about the jury

selection

process.

In a case involving Trump, he did it in front of this judge and in the same courtroom. So what's your answer to my poll question today? Will Donald Trump be able to get a fair trial in Manhattan? I'd be better off in Staten Island, Michael. It is a difficult group to choose. You know, it's often said that the name is after him, you know, all over the country. 50% feel one way and 50% another. But in my experience, having chosen from hundreds of potential jurors, there is no 50-50 split on that island. Mark my experience in this regard.

William J. Brennan, thanks for the information. I really appreciate it. With us now, CNN legal analyst, former federal prosecutor Jennifer Rogers. Attorney, you say there are three main things we need to watch for during the course of this trial. The first one starts in a few hours and that is jury selection. Yes, it is always important. It is very important here to have a defendant that everyone in the jury room knows and likely has strong opinions about. So both sides will be really focused on this. But it's particularly complicated for prosecutors because, of course, prosecutors need unanimity.

Good? They need all 12 jurors to find him guilty in order to find him guilty. And that's why they have to be able to exclude all people who are unfairly pro-Trump. Good. While Trump's people just have to exclude some people. So it's very, very important. And the case can be won or lost right here in jury selection. And do you think Trump's team will watch the jury not just starting today, but throughout the trial? I know, you know, because they're going to look for problems with the jurors, things that maybe they didn't reveal during voir dire. They could try to get rid of a juror even in the middle of the trial.

Certainly, after the trial, if things don't go their way, they will look for jurors who perhaps weren't honest during voir dire. They'll be cleaning up social media and all that stuff to try to file motions to overturn the verdict. If not, people will have to pay close attention today in the coming days, as this happens with the types of questions that are asked, the types of answers that these jurors give, of course, will be resolved in the meantime, after the jury has been seated. We listen to the witnesses. The most important witness in this case is probably Michael Cohen.

I say the most important, but also probably the most fraudulent. Yes, he is central in this case. He is, of course, the one who reimbursed Stormy two, who paid Stormy Daniels and was then reimbursed by the former president. He gives central testimony about what Trump really knew was happening. So he now he is the central figure. He is corroborated, prosecutors say, by documents and other witnesses. So he's not the whole game, but he really is the most important piece. He also disagrees with Trump. Good. They despise each other. You could say that Michael Cohen does not hide it.

He then has an obvious prejudice and has lied. He has admitted to lying under oath. So there are all these issues at play. And my real question for Michael Cohen is: can he stay calm in the face of what is going to be really aggressive? We'll talk about that. How does the prosecution intend to keep him disciplined, and how will the defense attempt to oust him? Well, you prepare it, right? You meet him again and again. You tell him what to expect. You go through mock interrogations where you really push him and you hope that after all that preparation and going through all that, he so many times he can make it on the stand and in defense.

Well, they're going to go after him with everything they have, they're going to call him a liar. They will review his testimony and find out why he was lying. He even said recently that when he pleaded guilty before a judge, which, of course, is under oath, he didn't really believe he was guilty of those crimes. So he's been giving them more and more fodder and they're going to use it all. And, of course, the prosecution will try to come forward with each of those specific accusations. Donald Trump himself has done it once again, every time there is a case involving Trump, he reflects, I can testify, I want to testify.

He's saying it again. Now, how much would be at stake for him? What does that decision entail? Well, as soon as a defendant testifies, everything else falls away. Good. That becomes the key. And that's what you have to think about here. It would be very risky for him to testify, and there's no way he'll do it if they don't get a very good ruling from the judge about what prosecutors can and can't do in cross-examination. Of course, they can ask about the incident in question. Of course, they can address anything that has been the subject of direct examination.

But usually it can also be prosecuted or cross-examined using impeachment evidence. And that includes questions about a reputation for dishonesty. No one has a greater reputation for dishonesty than the former president, that is, 30,000 false statements during his presidency, according to the media. All kinds of court cases in which he has been found responsible for lying and fraud. So there's so much ammunition there that if they don't get the judge to say that some of it is out, I don't think he'll testify at all.