AMAZINGLY, JUSTICE MERCHAN HAS DECIDED NOT TO SEQUESTER THE JURY DURING DELIBERATIONS
And, once again, there is apparent silence on the part of the prosecutors and news media as well.
Gang,
In various portions of my twelfth CCC newsletter edition on Tuesday (e.g., under Heading IV.A.1), I both explicitly and implicitly indicated that the Trump jury in the New York criminal case would be sequestered during deliberations. But after reading a copy of the justice’s final jury instructions and witnessing the silence in the news media accounts of yesterday’s proceedings in the case, it seems pretty clear that the jury has NOT been sequestered!
As wanting as has been the activity (or lack thereof) on the parts of Justice Merchan and the New York prosecutors to protect against jury-duty interference during the trial, they have far undone themselves now with the failure of the justice to order--and apparently the failure of the prosecutors to request--sequestration during deliberations.
The prime reason for sequestration of jurors during deliberations is to ensure that nothing is communicated to or by the jurors concerning the case outside of the jury room during the deliberation period, except when they are brought back into court by the judge, where the judge can control what is said to them and what they say. A secondary reason, but a reason that can be more important than the first in some cases, is a concern about jury tampering, aka jury-duty interference.
Consider this passage from Wikipedia’s webpage on “Jury sequestration”:
Sequestration is most commonly used in high-profile trials in which media coverage and public conversations about the case may be so ubiquitous that it is difficult for jurors to avoid. A judge also may order that a jury be sequestered to prevent others from tampering with them through undue persuasion, threats, or bribes. The trials of O.J. Simpson in 1995, George Zimmerman [murder trial regarding Trayvon Martin] in 2013, Bill Cosby in 2017 were modern cases in which it was done, with the jury spending 265 days in sequestration in the Simpson case.
In 2021, the jury in the Derek Chauvin murder trial [of George Floyd] was partially sequestered during the trial itself, and fully sequestered during deliberations. While the trial proceedings were ongoing, jurors were permitted to go home overnight, but parked in a secure location and were escorted between it and a private entrance to the courthouse. While the jurors were not monitored at home, the jurors were monitored at all times while in the courthouse, including during breaks and meals. The jury was fully sequestered once deliberations began.
(Endnotes and links omitted.)
Now you may well ask:
Why should we be concerned about sequestering the jurors during deliberations if they weren’t sequestered during the previous portions of the trial—such as Trump’s—since the jurors could be exposed to improper information, and to tampering, even before deliberations begin?
Here are the answers to that question.
First, here are ways in which it is more important, even in the typical criminal case, for the jury not to be exposed to, or involved in, outside communications about the case during deliberations than during the earlier portions of the trial:
During the evidentiary phase of the trial, the focus of attention on the part of the news media--and on the part of anyone who knows one of the jurors and might contact, or come into contact with, that juror, including the juror’s family members, friends, and employer--is on what the witnesses are testifying to at trial. But during the deliberation phase, everyone’s focus is on the jurors; for example, what each juror is thinking; what the jurors are saying to each other; what the vote breakdown may be among the jurors at any particular time; which juror(s) were behind any notes sent to the judge; why the juror(s) wanted the note sent; and what the jurors thought about the response they got to the note.
Another topic which the news media is more likely to cover during the deliberation phase is the possible sentence upon conviction. And that is something which, as the judge has already instructed the jurors, they should not even think about, let alone talk about or be influenced by.
During the deliberation phase, it is very important to the jurors that they can believe with utmost confidence that, at least during that phase, (a) what they say to each other will not got outside of the four walls of the jury room, except when it is necessary for them to advise the judge about something, and (b) the other jurors are not communicating with, or receiving communications from, anyone about the case other than the other jurors and the judge. But if the jurors know that all of them are going home every evening during deliberations, that confidence can be significantly diminished.
Information that the jury learns during the evidentiary phase of the trial may have become a distant memory by the time that deliberations are taking place. But things the jurors read, hear, or see during deliberations are likely to have a greater impact on the jurors.
During the evidentiary phase of the trial, the jurors have no control over how long that phase will last, and thus no one who knows one of the jurors would have any reason to suggest to that juror that that phase should be sped up. On the other hand, during the deliberation phase, family members, friends, employers, and others who know a juror might be tempted to subtly, or not so subtly, indicate the person’s displeasure with how much the deliberation phase is taking the juror away from them. Indeed, such persons, and even the juror, might not recognize that such indications are improper, as there need not be any explicit discussion of the case during such indications.
And those concerns are greatly magnified in the Trump New York prosecution (and will be magnified all the more in, say, the D.C. federal prosecution) in at least the following ways:
Trump’s New York criminal trial generally seems to be considered by the news media and others to be the most important criminal trial in the history of this country (although the federal D.C. trial is very likely to surpass that). So the odds of the jury’s receiving improper information during the deliberation phase is much greater in the New York Trump trial than in the typical criminal trial.
During the deliberation phase of Trump’s New York criminal trial, the news media and others will be mentioning the potential consequences of a conviction far more than is the case in a typical deliberation phase in a criminal trial.
Regarding the sentence, the question will not simply be what the sentence will be, but what effect the sentence will have on the election if Trump is given a carceral sentence and is not given bail pending appeal (although he is extremely likely to get such bail).
Regarding a conviction itself, there will be tons of coverage by the news media on the question of the effect that a conviction--especially of a felony--would have on the presidential election, and even on the future of democracy in this country. Those are hardly subjects that are raised by the news media or anyone else during the deliberation phase of a typical criminal trial--or of any other criminal trial to date, for that matter.
Trump and his proxies have repeatedly deluged news and social media with misinformation about the prosecutions and civil cases against him. This deluge included the New York prosecution even before jury selection commenced. So there is likely to be far more false—and perhaps even scandalous or otherwise shocking—media reporting during the deliberation phase of Trump’s New York trial than during that phase of a typical criminal trial, where little or no such misinformation is disseminated by the media (especially the news media).
Second, here are ways in which it is more important, even in the typical criminal case, to guard against jury tampering during the deliberation phase than during the evidentiary phase of a criminal trial:
Tampering is more likely to have an effect on jury deliberations and jury voting, and therefore also is more likely to occur, if done during the deliberation phase than earlier in the trial.
The following type of scenario can only occur during the deliberation phase of a criminal trial. During deliberations, the jurors send the judge a note, indicating that the jury is deadlocked. The judge calls the jurors into the courtroom, and learns from the foreperson that the jury is deadlocked 11 to 1. Those parts of the scenario happen fairly often in criminal trials. But what is very atypical, yet is possible, in that scenario is the ensuing part whereby the defendant and/or his supporters do everything they can to discover the identity of the holdout juror and how that juror has voted, and then bribe or intimidate that juror into (a) continuing to hold out if the jury had voted “Not guilty,” or (b) changing his or her vote from “Guilty” to “Not guilty” if the juror had voted “Guilty.”
And those concerns are greatly magnified in the Trump New York prosecution (and will be magnified all the more in, say, the D.C. federal prosecution) in at least the following two ways:
Before jury selection began in the New York prosecution, Trump had already repeatedly intimidated jurors, witnesses, and others connected to the criminal and civil cases against him—as well as family members of those people. This included Trump’s posting on social media a picture of himself holding a baseball bat and wielding it at the back of the head of the District Attorney who is prosecuting him in New York. So Trump is far more likely to try to intimidate or bribe jurors in the deliberation phase of his New York criminal trial than the typical criminal defendant is in that phase of his or her trial.
A criminal defendant who previously had repeatedly intimidated jurors, witnesses, and others involved in cases against him—as well as their family members—would normally be in custody by the time deliberations began in a current trial, and would normally not have any supporters willing to risk imprisonment by intimidating or bribing jurors during the deliberation phase. But Trump has never been taken into custody even for a second—even though Justice Merchan had ample justification to throw him into a cell—and Trump has a vast stable of supporters who will do almost anything for him, regardless of its illegality.
In conclusion, as they have done throughout the New York prosecution, Justice Merchan and the prosecutors--and the news media, for that matter--are acting as though jury-duty interference never occurs, and thus does not have to be prevented; except when their failure to act blows up in their faces, by which time any efforts are too little and too late.
Be seeing you,
Brian