The judge overseeing the case, which opens Thursday morning with jury selection, agreed this week that prospective jurors can be asked their opinions on some of the more provocative figures in Trumpworld, whose exotic and unfounded fraud claims in the fall of 2020 inspired an election-technology company to sue the conservative cable-news network.
Attorneys for the plaintiff, Dominion Voting Systems, acknowledged they would surely nix any Lindell believers or Giuliani fans.
“We are concerned as a general matter that if they have a favorable opinion of Mike Lindell right now, that regardless of any instruction that your honor might give, they are going to be unable to follow that instruction,” attorney Justin Nelson told Judge Eric M. Davis during a pretrial hearing.
Davis emphasized that his goal in settling on 12 jurors and six alternatives will be find people who have no significant conflicts of interest and “can be fair and impartial” in deciding the case.
“I don’t want somebody on here who is biased, one way or the other, before we put the evidence on,” the judge said. “I don’t want somebody who says Mike Lindell is a great guy or Mike Lindell is a bad guy.”
Yet Davis has indicated that he does not view how prospective jurors voted in 2020 to be a relevant factor. (Native son Joe Biden won the state of Delaware by 19 points in 2020.)
And he has narrowed Dominion’s ability to gauge whether prospective jurors are Fox News superfans.
While Dominion proposed several questions on how much they watch Fox or follow Fox personalities on social media, Davis has suggested he will limit it to one catchall query about Fox consumption — designed with an opening for jurors to say they can be fair despite regularly watching the network.
The question, which has yet to be finalized, will ask jurors, “Do you regularly watch any Fox News programs on television or any other medium, including social media, and if so, does this affect your ability to be fair and impartial?”
The judge suggested that not all Fox viewers should be seen as true believers, noting that some people “think they need to watch the other side.” In fact, Fox’s regular audience includes a large number of Democrats, though the network’s most devoted viewers generally skew right.
Both Fox and Dominion will have the opportunity to strike any nine jurors they want to — six from the main pool and three alternatives — in addition to an unlimited number of strikes “for cause,” meaning some sort of unavoidable perceived conflict of interest or a clear statement of bias.
“Each side is going to strike the extremes from the other side, so you’ll end up with a group in the middle,” jury consultant Roy Futterman said in an interview with The Washington Post. “The Dominion side will get rid of all the more extreme Fox viewers, the more extreme MAGA people. And the Fox lawyers will get rid of all the very, very liberal people.”
Susan G. Fillichio, a lawyer and trial consultant, predicted that Fox will embrace jurors “who admire the success of individuals such as Tucker Carlson” and who see the world as a “rough and tumble” place where people — and corporations — can be too sensitive in claiming to have been wronged.
Meanwhile, she expects that Dominion, like most plaintiffs suing for defamation, will look for jurors who feel they have been unfairly criticized in their personal or occupational lives.
“What they’re looking for is people who feel they themselves have been wronged,” she said. “Those can be good pro-plaintiff jurors.”
While the judge is allowing Fox power-watchers to claim to be impartial, “if someone is a Tucker Carlson die-hard, Dominion’s probably striking that juror,” Fillichio said.
“If I were Dominion, I would argue pretty hard that someone who watches Fox around-the-clock would be a questionable juror,” said George Freeman, a former lawyer for the New York Times who now serves as executive director of the Media Law Resource Center.
Because of the high-profile nature of the case, the wide media exposure it has received, and the length of the trial, the jury consultants who spoke to The Post said the process of picking a panel could take a while.
But, during a hearing on Wednesday morning, the judge said he is “pretty confident” he will be able to find enough jurors to seat the case.
