One of my most challenging jobs was managing a group of 100+ lawyers and support staff who handled the defense of all U.S. lawsuits against our company – thousands of them.  Most were settled one way or another before they went to trail, some for millions of dollars.  A small number, however, were decided by a jury, several of which involved potential liability of over $1 billion.

Company executives hated to settle cases that they believed were frivolous, and many were.  But they were even more upset when a trial jury hit us with a huge damage award.  Consequently, I knew my career was in the hands of 12 good men and women every time I recommended that we take a case to trial.

Fortunately, my team and our outside council, managed to win over 80% of them, some in very unfriendly jurisdictions.  As a result, I developed great respect for the jury system and solid confidence that we could win even against tough odds.

But my experience with juries was in the 1980s and early 1990s and, lately, I’ve become concerned that the objective judgement of the American public that I so heavily depended on back then has changed.  After all, recent polls indicate that a majority of Republican voters believe former president Trump’s baseless claims that he lost the 2020 election due to voter fraud.  And some polls show that President Biden has a 40% approval rating, even though unemployment is at record lows, wages are beginning to outpace inflation, the economy is reasonably good and some very consequential legislation was passed on his watch.

What could have changed, I’ve wondered?  Well, there’s a huge difference between the verdict of a trial jury and a statistic rendered by public opinion.  I’ve concluded, however, that it’s not that Americans have changed; the dichotomy lies in the information – i.e., evidence – they are getting. 

Those who have been seated on jury know that a trial is a tightly controlled process.  The judge dictates every step according to detailed rules of procedure and evidence.  Each party is typically represented by counsel who file pleadings with the court, a complaint by plaintiffs and an answer by defendants.  These documents state each party’s view of the facts and the law.  Witnesses can testify as to the facts and expert testimony can help the jury understand technical issues.  Perhaps most important factor that differentiates trail evidence though is that there are stiff penalties for lying. 

After the case has been presented by both sides, the jury – the fact finders – are given the controlling law by the judge and they decide on a verdict.  Because of its ridged procedures, I have long believed that the jury system has credibility with the public and that they will typically accept the results.

Still, much has changed from the late 1980s when right-wing firebrand Rush Limbaugh launched his radio talk show.  One of his main admonitions was against conservatives ever compromising with liberals – on anything.  For three hours every weekday Rush railed against the “liberal” media, oppressive big government and the left.  Virtually all over the nation, farmers on tractors, mechanics working on cars in small town garages and guys framing new homes were being constantly indoctrinated with his conservative misinformation blasting from their radios.

By the mid-1990s, the Fox News channel was doing the same with primetime television viewers all week long.  Conservative demagoguing became insidious and eventually got so lucrative that today there are dozens of such radio talk show programs and several copycat channels threatening to steal Fox’s audience with even more radical programing.

Far-right former Rep. Newt Gingrich (R-Ga.) used his influence as Speaker of the House after the 1994 election to infect dozens of up-and-coming Republicans with his “demonize the left” style of politics.  Soon these politicians and the ultra-conservative media began to play off and outdo one another, a political scrum that that just kept pushing further to the right and dragging tens of millions of their radicalized constituents along with them. 

Needless to say, Donald Trump co-opted the lot of them in 2016.

Yet, I’m reasonably optimistic that the rule of law will prevail in judging Trump’s past crimes.  What gives me some confidence is the 2018 Trial of Paul Manafort, Trump’s former campaign manager.  Juror Paula Duncan, a self-described strong Trump supporter – with her red MAGA cap in her car as she drove to the courthouse – told why she voted to convict Manafort.  Prior to the trial, she had thought he was being targeted to get dirt on Trump and didn’t want him to be guilty.  During an interview on Fox News, however, she said her vote was based on the evidence against him, which was “overwhelming,” and that “no one’s above the law.”

I believe Trump will be recklessly rolling the dice if he relies on a MAGA biased jury in several federal and state jurisdictions, and/or on winning the presidency, to avoid criminal liability.   Scott Galloway, a podcast host and professor at New York University predicts that he will abandon the presidential race and accept a plea deal to avoid the possibility of jail time. The several charges he is facing would complicate a comprehensive resolution but one is probably doable. 

I believe the former guy would be wise to take Mr. Galloway’s way out.  But then, when has he done anything smart recently?