Finding impartial jury for Greitens trial? ‘Pretty close to impossible,’ experts say
Finding impartial jurors for Missouri Gov. Eric Greitens’ trial will be a challenge after months of media coverage and an explosive legislative report that contains new allegations against the governor.
Jean Paul Bradshaw, the former U.S. attorney for the Western District of Missouri, said that any case that involves a public official or receives a large amount of pretrial publicity presents problems for jury selection.
“This one kind of takes it to a new level,” said Bradshaw, who now handles white-collar criminal defense cases. “It’s story after story.”
Kansas City attorney Patrick McInerney said the release of a legislative report this week that contains allegations beyond the indictment will make selecting an impartial jury even more complicated.
“This House report, I think, was so explosive and so far beyond the bare allegations in the indictment that it’s truly a whole new story,” he said.
In testimony that lawmakers found credible, the woman at the center of the case testified that Greitens coerced her into sex and struck her on three occasions.
The governor now faces bipartisan calls for his resignation and growing support for impeachment in Jefferson City ahead of his May 14 trial. Jury selection will take place in St. Louis the week before the trial.
“There’s no playbook for this," said McInerney, who previously worked for the Jackson County prosecutor’s office and U.S. attorney’s office. "The usual cure is to find a jury pool that hasn’t been as affected, but I don’t know where you find them in this state with this story.
“I think it’s unprecedented for any state. When was the last time that a sitting governor was accused of the things Greitens is?”
St. Louis Circuit Judge Rex Burlison rejected a motion from Greitens’ team in March to make the trial a bench trial, one in which the judge rather than a jury would rule on the governor’s guilt or innocence.
Bradshaw noted that lawmakers have a different standard of evidence than the court when considering whether to impeach Greitens. “Some of the evidence may not see the light of day in the courtroom,” he said.
He also said some of tactics used by Greitens’ team will complicate efforts to find impartial jurors. In addition to filings from his attorneys, Greitens and his political team have repeatedly attacked St. Louis Circuit Attorney Kim Gardner and the governor’s alleged victim.
“I hate this idea of trying cases in the press,” said Bradshaw, who recalled the difficulty of jury selection in the case against Kansas City Fire Department Capt. Gilbert Dowdy in a federal drug-trafficking case.
Dowdy’s supporters had blanketed downtown with flyers that said “Free Captain Dowdy” ahead of jury selection, he said.
Burlison issued a gag order on the attorneys in the Greitens case on Tuesday, but he rejected a request from Greitens’ team to place a gag order on lawmakers to prevent the release of the report. He acknowledged concerns about the dissemination of information ahead of the trial but also noted the separation of power.
Lawmakers also bucked a request from Greitens' team to delay the report until after the conclusion of his trial.
Gardner’s office said Thursday that because of the gag order, it could not comment on whether the report would affect the trial.
Greitens’ team also said it could not comment on the impact of the report on jury selection, but during a Thursday court hearing his attorneys argued that a video interview with the governor’s alleged victim contradicts the allegations in the House report.
The judge clarified Thursday that the gag order does not prevent Greitens from responding to the allegations in the House report and that, more broadly, any defendant "can stand on the front of the courthouse and scream their innocence," according to a transcript of the court proceedings.
Greitens has made several statements blasting the report both before and after its release.
“The House report contained explosive, hurtful allegations of coercion, violence, and assault. They are false. Those allegations can be refuted with facts,” Greitens said in a statement Thursday in which he accused Gardner of hiding the video until after the report’s release.
Gardner’s office disputed this characterization in a filing later Thursday, saying that the “scorched earth strategy of the defense rests on diversionary tactics."
Tim Dollar, a Kansas City attorney with 35 years of experience in criminal law, said that while challenging it’ll still be possible to ensure that Greitens receives an impartial jury.
“Believe it or not, there will be a lot of people who really haven’t (followed the story),” said Dollar, who works part-time at the Jackson County prosecutor’s office in addition to his private practice.
The standard for disqualifying jurors “is not whether you have heard or read any information about it," he said. "… The standard is whether based on what you’ve read, have you formed any opinion about the guilt or innocence of the defendant?”
Dollar served on the prosecution team that handled the "Precious Doe" murder case, which had received years of national and local media coverage before the girl’s mother and stepfather were tried and convicted for her 2001 murder.
He said that after going through a jury pool of several hundred people, the court was able to find 12 jurors who had not formed an opinion on whether the defendants were guilty.
But even if a person says they have not formed an opinion, their previous exposure to the case should give attorneys pause, Bradshaw said.
“It always worries me when people say, 'Well, I’ve heard lots about it but I can put that aside,' ” he said.
Melanie Wilson, dean of the University of Tennessee College of Law in Knoxville, said the goal of assembling a truly impartial jury “may be more aspirational than we wish it were,” especially in high-profile cases.
“Here I am in Knoxville, Tennessee, and I certainly know about the case,” she said.
Attorneys can challenge an unlimited number of jurors for cause, on top of the six each side can eliminate for any reason, Dollar said.
But Wilson said that to strike someone for cause requires “a pretty strong showing," and attorneys will ask potential jurors probing and incredibly personal questions during the process.
“Oftentimes, the jury feels like their privacy has been completely trampled on,” said Wilson, who researched jury selection during a previous post at the University of Kansas.
Daniel Medwed, a professor at Northeastern University School of Law in Boston, said broader national narratives surrounding sexual harassment and assault also could influence potential jurors.
Medwed said in an email that “the jury pool could be more amenable to believing the accusing witness than in the pre-MeToo era” and that prosecutors “may benefit by having a broader swath of potentially desirable jurors to choose from.”
He said in a follow-up phone call that the court probably will be able to identify 12 jurors it can accept as impartial in a legal sense, but that doesn’t mean the jury won’t have been influenced by the months of attention on the case.
“Are they really going to get an impartial jury? I’d say it’s pretty close to impossible,” Medwed said.
Related coverage from The Star:
This story was originally published April 13, 2018 at 11:57 AM with the headline "Finding impartial jury for Greitens trial? ‘Pretty close to impossible,’ experts say."