DC Jury v. Fair Trial

Attorneys for J6 defendants raised the issue that their defendants cannot receive fair trials in the DC, due to the partisan preferences of the DC jury pool. 92% of DC voters voted for Biden, and only 5.4% voted for Trump. The DOJ objected. For example, in USA vs Strand (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, 1:21-cr-00085-CRC), prosecution cited[1] a DC Circuit of Appeals decision from 1975 as saying that the DC jurors pool was ok for a fair trial for Nixon associates, despite overwhelming majority of DC votes cast for Democrats. The DC presidential votes in In the DC Presidential elections of 1968 and 1972, Democrats (D) received 81.8% and 78.1% of the DC vote, respectively.[2]

The prosecution argument is wrong. Current DC bias in favor of Democrats, measured by the voting results, is incomparable with what existed in that time, circa 1974.

While 82% and 92% may seem like close numbers, the rate of D:R supporters is drastically different. Circa 1974, that rate was 4:1; now it is 19:1. Today, a DC jury is likely (53%) to have 12 Democrats and no Republicans.

Year D R Ratio D:R On jury, average On jury, 0 On jury, <=1
1968 81.8% 18.2% 4.5 2.7 5% 22%
1972 78.1% 21.6% 3.6 3.3 2% 11%
1972 & 1968 80.0% 19.9% 4.0 3.0 3% 16%
2016 90.1% 4.1% 22 0.5 57% 90%
2020 92.2% 5.4% 17 0.7 48% 85%
2020 & 2016 91.2% 4.8% 19 0.6 53% 87%

The raw percentage includes only people who voted. It is assumed that each potential juror has a party preference D or R, and preferences among those who did not vote or voted neither is the same as among those who voted D or R. The assumption is in favor of the fair trial hypothesis. If significant share of the juror’s pool prefer neither D nor R, or if the preference is very weak, the probability that the defendant has no R or only one R on the jury decreases. Random jurors’ selection is assumed. The data sources (270toWin.com[3] & the current Wikipedia snapshot[4] match each other and the numbers cited by the DOJ). The relevant averages of the last two elections are highlighted in yellow. The columns: On jury, average – the expected number of R-supporters on a 12-person DC  jury; On jury, 0: the probability that 0 (none) R-supporters are on the DC jury; On jury, <=1: the probability that 0 or 1 R-supporters are on the DC jury. The probability distribution of jurors by party preference is a simple binomial distribution.

The average of the last two Presidential elections is used, in line with the prosecution argument. In both cases, D-supporters would be the overwhelming majority on DC juries, but a DC jury circa 1974 would have had an average 3.0 R supporters, while now it would have an average of 0.6 R-supporters.

Because of the required unanimity of the vote, even a small minority of jurors supporting one party might be enough to prevent overtly partisan decision making by a majority supporting the opposite party.  This was the situation existing circa 1974. The probability to have no R-supporters on a DC Jury was only 3% in 1974. Today, this probability is whooping 53%. A uniformly partisan jury would return a blatantly partisan verdict each time.

Further, today’s extreme partisan polarization and the culture of intimidation of Trump/MAGA supporters creates a very different environment than in the 1970’s.  It is unlikely that a lone R-supporting juror would risk opposing everyone else. The probability of no or one R-supporter on the DC jury is 87%.

Thus, DC juries are not suitable to try J6 defendants, who are presumed staunch Trump supporters. By the same math, DC juries are not suitable to decide any matter with a slightest political tint.

[1] https://americangulag.org/wp-content/uploads/2021/08/dcd-1_2021-cr-00085-227165-00081.pdf

[2] “The defendant contends that he cannot obtain a fair trial in the District of Columbia because more than 92% of its voters voted for the Democratic Party candidate in the 2020 Presidential Election. [ECF No. 79, at 6] The en banc D.C. Circuit rejected a nearly identical claim in Haldeman, where … the Democratic candidate received 81.8% and 78.1% of the vote when Nixon ran for President in 1968 and 1972, respectively”

 [3] https://www.270towin.com/states/District_of_Columbia

[4] https://archive.ph/KKCLF

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