AN INTRODUCTION TO THE USE OF JURY NULLIFICATION IN TRUMP’S CRIMINAL TRIALS

Edition A in the New Series on Jury Nullification

Gang,

I. Introduction

Whether or not jury selection begins in Justice Merchan’s courtroom later this morning, today’s seventh edition of my Substack “Contemplating Coup Convictions” (CCC) newsletter will have relevance to any trial held in one the four criminal cases pending against Trump.

Today’s edition is the first in a series of editions of the CCC newsletter which, when combined, will give you a comprehensive catalogue of the various issues related to an extremely important aspect of Trump’s criminal trials. Except in jurisdictions where the law is to the contrary, that aspect concerns the duty of every prospective juror (a) to truthfully and completely answer all questions put to the prospective juror during jury selection and (b) if chosen to sit on the jury, to vote to convict the defendant on any and all counts in the indictment as to which the juror is convinced beyond a reasonable doubt that the defendant is guilty, based solely on the evidence admitted at trial and the instructions on the law that the judge provides to the jury.

Yes folks, that’s right. We’ve finally gotten to the absolutely vital subject of “jury nullification,” which I promised to cover in Item B.2.e on the "About" page on my CCC Substack website, and to which I also referred briefly under Heading II.B (twice) in my fourth CCC newsletter edition (posted on February 28) and under Heading III.A.3 in the sixth edition (posted on April 1).

Under Headings II through VI below, I will begin the examination of the aspects of jury nullification that are relevant to the Trump criminal trials.

Under Heading VII below, I will briefly apologize for the several typos in the sixth edition of my CCC newsletter.

Finally, under Heading VIII below, I will end today’s newsletter edition by answering the trivia question I posed under Heading VI.B in my sixth CCC newsletter edition which I posted on April 1. Today’s edition, perhaps like the remainder of the editions in this series on jury nullification, does not contain any photographs or new trivia questions. That is because, in light of the likelihood that jury selection in Trump’s New York criminal case will begin at some point soon, if not today, it is important that I complete as much of the series as I can relatively soon, and thus it is unlikely that I will have the time to include such entertainment items in the newsletter editions.

Primarily for the same reason, this edition, and some of the other editions in the new series, may not contain nearly as many links--which provide authority supporting statements I make in the editions--as has been my custom in the first six editions of the newsletter.

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For your assistance, I will now lay out a table of contents of the various headings used in this edition. Of course, emails do not have pages, so the table of contents will not include references to page numbers on which each of the headings begins.

Here, then, is the table of contents:

I. Introduction

II. What Is Jury Nullification?

III. A Brief History of Jury Nullification in America

IV. To What Extent Does Trump Have an Interest in Encouraging the Use of Jury Nullification in His Criminal Trials?

V. What Statements Have Already Been Made by Trump and Others That Increase the Likelihood That One or More Jurors in a Trump Criminal Trial Will Engage in Jury Nullification?

A. Two Important Definitional Dichotomies

B. Indirect, Trump-Situational Statements Made by Trump, His Attorneys, His Supporters, and Others

C. Direct, Trump-Situational Statements Made by Trump, His Attorneys, His Supporters, and Others

D. The Vital Unclarities in Many of the Direct, Generic Statements Made by Individuals or Groups

VI. Coming Attractions of Still More Vital Matters You Won’t Want to Miss Concerning Jury Nullification in Trump’s Criminal Trials

VII. Apology for the Typos in My Sixth CCC Newsletter

VIII. Answer to the Trivia Question in the Sixth CCC Newsletter

_______________________________

II. What Is Jury Nullification?

Item B.2.e on the "About" page on my CCC Substack website provides this basic definition of jury nullification:

Generally speaking, the term “jury nullification” refers to a situation in which a juror in a criminal trial votes to find the defendant not guilty, not because the juror believes that the prosecution has failed to establish the defendant’s guilt beyond a reasonable doubt pursuant to the evidence introduced at trial and the instructions the judge has given the jury about the law applicable to the case; but because the juror, for some other reason or reasons, does not want that defendant to be convicted.

The only thing that needs to be added to that basic definition I previously provided is that, if a juror votes to acquit the defendant on one (or more) of the counts in the indictment notwithstanding that the juror believes that the prosecution has established the defendant’s guilt beyond a reasonable doubt as to that count (or counts), but votes to convict the defendant on one (or more) other count(s) in the indictment, then the juror is still engaging in jury nullification as to the count (or counts) on which s/he votes to acquit the defendant.

A juror might act in the manner described in the immediately-preceding paragraph in at least the following two circumstances.

First, the juror may believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt as to all of the counts of the indictment, but may also may feel that his or her basis for voting to acquit the defendant on one (or more) particular count(s) does not apply to the other count(s) in the indictment.

Second, the juror may believe that the prosecution has proven the defendant’s guilt beyond a reasonable doubt as to all of the counts in the indictment, but may also may feel uncomfortable about engaging in jury nullification to let the defendant off scot free, and thus votes to exercise jury nullification only as to one (or more), but not all, of the counts in the indictment.

III. A Brief History of Jury Nullification in America

At some point during your education you may have been taught about the criminal prosecution of John Peter Zenger in New York City in 1735. Here are excerpts from Wikipedia's entry about that case:

John Peter Zenger (October 26, 1697 – July 28, 1746) was a German printer and journalist in New York City. Zenger printed The New York Weekly Journal. He was accused of libel in 1734 by William Cosby, the royal governor of New York, but the jury acquitted Zenger, who became a symbol for freedom of the press.

In 1733, Zenger began printing The New York Weekly Journal, which voiced opinions critical of the colonial governor, William Cosby. On November 17, 1734, on Cosby's orders, the sheriff arrested Zenger. After a grand jury refused to indict him, the Attorney General Richard Bradley charged him with libel in August 1735. Zenger's lawyers, Andrew Hamilton and William Smith, Sr., successfully argued that truth is a defense against charges of libel.

. . .

In 1733, Zenger printed copies of newspapers in New York to voice his disagreement with the actions of the newly appointed colonial governor William Cosby. On his arrival in New York City, Cosby had plunged into a rancorous quarrel with the colony council over his salary, trying to recoup half of the salary of the previous acting governor Rip Van Dam. Unable to control the colony's supreme court, which had ruled against Cosby in the dispute, Cosby removed Chief Justice Lewis Morris, replacing him with the royalist justice James DeLancey. Supported by members of the Popular Party, Zenger's New-York Weekly Journal continued to publish articles critical of the royal governor. Finally, Cosby issued a proclamation condemning the newspaper's "divers scandalous, virulent, false and seditious reflections."

Zenger was charged with libel. James Alexander was Zenger's first counsel, but the court found him in contempt and disbarred him, removing him from the case. After more than eight months in prison, Zenger went to trial, defended by the Philadelphia lawyer Andrew Hamilton and the New York lawyer William Smith, Sr. The case was now a cause célèbre, with the public interest at fever-pitch. Rebuffed repeatedly by chief justice James DeLancey during the trial, Hamilton decided to plead his client's case directly to the jury. After the lawyers for both sides finished their arguments on August 5, 1735, the jury retired only to return in ten minutes with a verdict of not guilty, a famous example of jury nullification.

(Endnotes omitted.)

So the Zenger trial was one in which, 41 years before the signing of the Declaration of Independence and 65 years before the ratification of the United States Constitution, colonist jurors rebelled against the railroading—by a governor and a judge who were loyal to the British Crown—of a journalist who simply printed the truth about that corrupt governor.

Of course, once the United States successfully fought for its independence and became a sovereign nation whose laws and legal system were no longer controlled by an outside power, there was no longer any need for such court rebellions.

Nevertheless, the notion of jury nullification never fully vanished from this country. At different times and in different American jurisdictions, courts, citing constitutions, statutes, earlier court decisions, and/or other authority, have sanctioned jury nullification in various ways, or have refused to forbid it, and various serious and respected legal thinkers have advocated its use--at least in certain circumstances.

Whether legal in a particular jurisdiction or not, jury nullification has been particularly likely to surface, and obtain some judicial and scholarly approval, when massive amounts of prosecutions have been brought for the violations of certain types of crimes as to which a large segment of the population considers prosecution and/or sentencing to be unjust. Among the most notable of these situations has concerned alcohol-related prosecutions during Prohibition; prosecutions of draft-resisters during the Vietnam war; and prosecutions of people on drug charges, especially where the crime merely involves possession of drugs--particularly low-level drugs like marijuana.

IV. To What Extent Does Trump Have an Incentive to Encourage the Use of Jury Nullification in His Criminal Trials?

Ordinarily, if a criminal defendant believes that s/he has a reasonable chance of being acquitted, or at least of getting a hung jury (and it takes only one juror to hang a jury), then the defendant will often, and perhaps most of the time, proceed to trial. And when such a defendant does proceed to trial, it is almost always the case that both the defendant and his attorneys will act respectively toward the judge, and will avoid making statements, motions, or legal arguments in or out of court which come anywhere near appearing to be frivolous or otherwise improper. The reason for this is that the attorney knows, and ensures that the defendant knows, that acting in any other way will only increase the defendant’s chances of being convicted, and will run a serious risk of making the defendant’s sentence more severe in some manner upon conviction.

On the other hand, when a criminal defendant does not believe that s/he has a reasonable chance of being acquitted, or at least of getting a hung jury, then the defendant usually pleads guilty. That is because, in the American system, ordinarily a defendant will receive a significantly more severe sentence, and almost certainly will at least face the possibility of receiving such a sentence, if s/he goes to trial rather than pleading guilty.

Trump has taken a third route in the three of his four pending criminal prosecutions in which the presiding judge has not evidenced a bias (much less an astounding bias) in Trump’s favor. He has acted abysmally toward the judges in those three cases and toward persons close to the judges; and has had his attorneys make motions and arguments that, especially when viewed together, are obviously making the trial and appellate judges in those three prosecutions quite displeased with him, and are providing further justifications for their making legal rulings against him. One might reasonably conclude, therefore, that Trump does not believe that he has much of a chance of winning those cases on the merits. Yet for now, he apparently has shown no interest in seeking a plea bargain.

At this point, it doesn’t really matter whether or to what extent, as to any particular prosecution among those three, Trump has chosen the seemingly self-destructive option (a) because he realizes that he has little chance of success in the case but worries, quite reasonably, that a guilty plea would likely lead to his defeat in the November election and enormous personal embarrassment in the eyes of most of the world, or (b) because he simply cannot imagine restraining himself through long trials during which he would have to sit quietly and otherwise act like a mature adult while evidence piles up against him in court. He, both personally and through his attorneys, has made his bed, especially in the New York case, where the opportunities for additional significant delays appear to be reaching the vanishing point, if they have not already reached it.

The extent to which the bed he has made for himself is an uncomfortable one, and thus the extent to which he is likely to continue on with his jury-nullification strategy, varies among the cases. Contrasting the federal D.C. prosecution with the New York prosecution should be instructive.

In the federal D.C. case, the prosecutors are top notch; the judge is experienced, bright, and appears to brook no nonsense; the evidence of guilt seems very strong; it does not appear that Trump has any credible defense, although one of the crimes with which he has been charged is subject to a legal challenge; the jury pool would appear to be quite unfavorable to Trump (although that circumstance would lower the odds that his jury would contain a juror who would be willing to engage in jury nullification); the prison penalties available upon being convicted at a trial are very severe; and a conviction on one or more of the crimes charged would seem to be more likely than a conviction in any of the other cases to hurt Trump’s chances in the November election.

Accordingly, in order to obtain even a hung jury in the federal D.C. case, Trump would appear to have little if any alternative than to continue to seek jury nullification--including, and even more so, in front of the jury--just as he has done in and out of court prior to jury selection (see Heading V.B below), and even to engage in new crimes to obtain the same results as jury nullification is intended to achieve. I will examine such potential new crimes, which could work just as readily with jurors disposed against Trump as jurors disposed in favor of Trump, in an upcoming CCC newsletter edition in this series.

On the other hand, in the New York case, Trump’s chances of at least obtaining a hung jury, or of avoiding a felony conviction--which avoidance would be desirable for Trump in at least two ways¹--without having to rely on jury nullification seem substantially greater than in the federal D.C. case. Neither the prosecutors nor the judge in the New York case seem to be as worrisome for Trump as their counterparts in the federal D.C. case; the prosecution’s case in New York is weaker, largely because at least one of the jurors may honestly believe that chief prosecution witness Michael Cohen has carry-on baggage beyond the permissible limit; there is a potential legal defense in the New York case which, if successful, would undo a felony conviction against Trump; the jury pool in Manhattan seems more favorable to Trump than that in D.C.; the available prison sentences upon a felony conviction after trial in the New York case are far, far lower than those in the D.C. case; and even a felony conviction in the New York case would seem to be less likely than a conviction in any of the other cases to hurt Trump in the November election. So Trump presumably will be less inclined during jury selection and during the trial proper in the New York case to go all out with trying for jury nullification (and new crimes) than he would be in the D.C. case.²

It might be thought that there is an important factor that would make Trump more inclined to push for jury nullification in the New York case than in the federal D.C. case: that even if reelected, Trump would have no power to pardon himself regarding state crimes. However, the general view among experts seems to be that Trump could not be prosecuted or incarcerated while he is in the White House, and it is doubtful that Trump’s jury-nullification calculus includes a concern for what might happen in 2029, which is when his second term would end if he were reelected this November. This, both because Trump’s primary concern now is avoiding being convicted in 2024, not what may happen in 2029 and thereafter; and because Trump seems to envision that he will turn our democracy into an autocracy if he reenters the White House in 2025, whereupon he would be reasonably likely try to remain in the White House until his death, whenever that may come.

In theory Trump could go all out with jury nullification during as many trials as come his way. But in practice, he may not want to do that. For example, if he went all out (see, e.g., Headings V.A, V.C, & V.D below) in the New York case, then, whatever the result of that trial is, Special Counsel Smith and Judge Chutkan would be more likely than they are now to clamp down (see, e.g., Heading VI below) on Trump well before jury selection in the federal D.C. case begins, and certainly during jury selection and the trial proper, to prevent a repeat of his New York performance. This, both because they would have more of an incentive to clamp down earlier and more severely, and because they would have greater justification to cite for doing so.

Finally, it must be noted here that there are additional factors that should affect Trump’s decision as to the extent to which he will push for jury nullification in a particular criminal case once jury selection begins and throughout the trial proper, but that he and his attorneys may well not even consider: whether jury nullification is illegal in the jurisdiction in question, and whether judges and prosecutors in that jurisdiction have the means (and the will) to try to prevent jury nullification from occurring in addition to their being able to ask questions of potential jurors during jury selection. As will be discussed in an upcoming CCC newsletter edition in this series on jury nullification, Trump and his attorneys may well not be fully aware of the extent to which jury nullification is illegal in a particular jurisdiction (assuming that they would care about that extent); and, more importantly, are even more likely to be unaware of the additional tools available to judges and prosecutors in that jurisdiction to deter, smoke out, and punish those persons who do, or try to, engage in jury nullification, and those who aid, abet, solicit, or conspire with those persons. (See, e.g., Headings V.A, V.D, and VI below.)

V. What Statements Have Already Been Made by Trump and Others That Increase the Likelihood That One or More Jurors in a Trump Criminal Trial Will Engage in Jury Nullification?

A. Two Important Definitional Dichotomies

Statements that increase the likelihood that jurors will engage in jury nullification can be divided into two categories. The first category I will call “direct,” and the second I will call “indirect.”

“Direct” statements that increase the likelihood that jurors will engage in jury nullification usually use the term “jury nullification,” and, in any event, explicitly or implicitly:

1. state that a seated juror legally can vote to acquit a defendant on a count as to which the juror believes that the prosecution has proved the defendant’s guilt beyond a reasonable doubt;

2. state that a prospective juror legally can intentionally withhold information which would be responsive to one or more questions posed to the juror during jury selection so that the juror would be more likely to be selected to sit on the jury and thus be in a position to engage in jury nullification;

3. proffer ways in which a prospective juror, by word and/or deed, can try to hide from the judge and the attorneys the prospective juror’s intention to engage in jury nullification, or hide from them information which might lead them to excuse him or her for cause or peremptorily, thereby increasing the odds that s/he will be seated as a jury and thus will be able to engage in jury nullification;

4. proffer ways in which a seated juror can attempt to induce other jurors in the case to engage in jury nullification as well;

5. state that a seated or prospective juror cannot be punished for engaging in the practices listed under Items 1 to 4 above; and/or

6. state that, in any event, if a seated or prospective juror is careful, it is quite unlikely that authorities will be able to learn, much less prove, that the juror has engaged in any of the conduct listed under Items 1 to 4 above.

“Indirect” statements that increase the likelihood that jurors will engage in jury nullification essentially encompass all other statements that increase that likelihood. The primary, if not sole, means of making such indirect statements involves placing before the jury pool, the prospective jurors during jury selection, and/or the seated jurors, information which is not admissible at trial and which can induce a seated juror, consciously or otherwise, to vote to acquit the defendant on a count as to which the juror believes the prosecution has proven the defendant’s guilt beyond a reasonable doubt on the basis of the admitted evidence and the law as instructed upon by the judge.

A second definitional dichotomy in the area of jury nullification involves the motivation of the individual or group who is making statements that increase the likelihood that jurors will engage in jury nullification. Such individuals or groups who are making such statements with respect to Trump’s cases, the types of crimes with which Trump has been charged, or anyone allegedly involved in Trump’s attempted coup, I will call “Trump-situational” makers of statements that increase the likelihood that jurors will engage in jury nullification in one or more of Trump’s criminal trials. In contrast, for the purposes of today’s newsletter, “generic” makers of such statements encompass all other makers of such statements.

B. Indirect, Trump-Situational Statements Made by Trump, His Attorneys, His Supporters, and Others

Trump has been encouraging the use of jury nullification in all four criminal prosecutions against him from the outset of each case. He has publicly and repeatedly referred to those prosecutions as, for example, “witch hunts,” and as politically-motivated attempts at “election interference” that have been instigated by Biden and are being pushed by “corrupt” judges and prosecutors.

Also, he has made public comments denigrating likely prosecution witnesses, and has also made public statements about supposed facts in the case. Some of those comments and statements would not be admissible even if Trump were to testify and thus be subject to cross-examination. And as to those statements and comments that would be admissible if Trump were to testify, most commentators seem to think that there is little if any chance that Trump would testify at any of his criminal trials. (On Friday, Trump stated publicly

that he “would testify absolutely” in the New York criminal trial. In a later CCC newsletter edition in this series on jury nullification, I will explain why Trump may well testify in the New York trial--and/or in other of his criminal trials; although, on at least one, and probably the first, occasion, such testimony would likely include matters which very few people would expect.)

Moreover, many of Trump’s public statements, especially when viewed in the context of actions taken by some of his supporters that were, or appear to have been, instigated by those statements, have given members of the relevant jury pools in Trump’s criminal cases reasons to fear for their safety and the safety of members of their family.

All of the abovementioned forms of public statements Trump has made serve to encourage prospective and seated jurors who have been exposed to the statements to engage in jury nullification, or to engage, out of fear, in conduct which yields the same results as jury nullification does: voting for acquittal even though they believe, based solely on the evidence properly admitted by the judge at trial and on the law as provided by the judge, that the prosecution has proved his guilt beyond a reasonable doubt. See Item B.2.e on the "About" page on my Substack CCC website; Heading II.B in my fourth CCC newsletter edition (posted on February 28); Heading V in the fifth edition (posted on March 17); and Heading III.A.3 in the sixth edition (posted on April 1).

Moreover, Trump’s attorneys, in their statements to the news media, in their court filings, and in their oral statements in court, have put forth many of the same statements that Trump himself has been making publicly.

Then there are Trump’s supporters--whether they are in the news media, in Congress, in some other position in the federal or a state government, or otherwise, and whether via print, radio, the Internet (including social media, streamed videos, and streamed podcasts)--who have publicly repeated and supported the statements made by Trump and his attorneys. And even people in the media and among the public who do not support Trump, and who may even oppose him, have reported on, shared, forwarded, or otherwise transmitted the statements made by Trump and his attorneys. All of that increases the extent to which the members of the various jury pools have been exposed to information that can encourage them to engage in jury nullification if they are seated as jurors in a Trump criminal case.

C. Direct, Trump-Situational Statements Made by Trump, His Attorneys, His Supporters, and Others

One can readily find on the Internet, such as by using the Google search engine, instances in which individuals suggest or recommend that jurors engage in jury nullification in one or more Trump criminal cases. As to whether any groups are making such suggestions or recommendations online, or whether any such individuals or groups are associated with Trump, I cannot say. This is both because I do not take part in social media in light of the harms they cause, and because I have not had the time to do appropriate online searching outside of social media.

Nevertheless, in light of the numerous items that are readily discoverable on the Internet that advocate for, and/or advise people on, the use of jury nullification (see Headings V.A above & V.D below), I would be shocked to learn that huge numbers of persons (and even some groups) acting on Trump’s prompting or who otherwise are associated with Trump or who simply want to help him, have not been using social media to spread the sort of information listed in Items 1 through 6 under Heading V.A above.

Indeed, on and before January 6, 2021, even where Trump’s liberty, and his chances of winning an upcoming presidential election, were not at stake, Trump personally summoned and then encouraged his supporters to engage in conduct on his behalf which essentially all adults free of serious mental problems would know, or at least suspect, were quite illegal. Moreover, Trump, his lawyers, and his supporters have been openly making indirect, Trump-situational statements that increase the likelihood that jurors will engage in jury nullification in Trump’s criminal trials. (See Heading V.B above.) So why in the world would Trump refrain from having his operatives surreptitiously spread across social media and elsewhere the sorts of ideas listed in Items 1 through 6 under Heading V.A above, especially since those items explicitly or implicitly indicate that nothing illegal would be involved in carrying out the actions described in those items?

D. The Vital Unclarities in Many of the Direct, Generic Statements Made by Individuals or Groups

One can conduct searches regarding jury nullification on Internet search engines such as Google--and presumably can conduct such searches on social media, Internet platforms, and the like--and get numerous hits containing statements about jury nullification of the sorts listed in Items 1 through 6 under Heading V.A above that make no mention of Trump. A serious problem with most of the hits you would get is that the law and practices regarding jury nullification are different in different jurisdictions; and yet most of the hits you’d get won’t make that distinction--or at the very least won’t make that distinction as clear as it could be--and thus will provide information which may be correct as to some jurisdictions but which can lead some, most, and perhaps even virtually all readers to have incorrect understandings as to other jurisdictions.

Among the potential explanations for that serious problem are the following. Many, and perhaps most, of those who post the items that the hits lead you to are probably nonlawyers who are simply repeating what they read or heard elsewhere. Others may be nonlawyers who consulted a lawyer but who misunderstood or misremembered the advice the lawyer gave. Still others may be lawyers who do not realize that what they have posted does not apply throughout the country, or do not realize that readers could understand what the lawyer has posted as applying throughout the country. Finally, yet others may be lawyers who are simply making a mistake, which happens at times to all of us lawyers, and to all of us human beings.

VI. Coming Attractions of Still More Vital Matters You Won’t Want to Miss Concerning Jury Nullification in Trump’s Criminal Trials

Since I left you with a major cliffhanger--or with a series of cliffhangers--under Heading V.D above, I will now provide you, by way of tentative headings, with coming attractions from upcoming CCC editions in this series on jury nullification:

• What Can Anyone Do Prior to the Commencement of Jury Selection to Try to Prevent Jury Nullification From Taking Place in One of Trump’s Criminal Trials?

  • Identifying and Remediating the Unclarities Contained in Much of What One Finds on the Internet and Elsewhere Regarding Jury Nullification

    • Where Is Jury Nullification Illegal?

    • Where Is It Illegal for a Prospective Juror, by Word and/or Deed, to Intentionally Withhold Information Which Would Be Responsive to One or More Questions Posed to the Juror During Jury Selection, Especially If Such Withholding Were Done To Increase the Odds That the Jury Will Be Seated as a Juror in the Case, Thereby Enabling the Juror to Engage in Jury Nullification?

    • Where Can a Juror—Prospective or Seated—Be Punished for Intentionally Withholding Information Which Would Be Responsive to One or More Questions Posed During Jury Selection, or for Engaging in Jury Nullification During the Trial Proper?

    • Even If a Prospective or Seated Jury Is Careful, Where Can the Judicial System Find Out That the Juror Acted Illegally in Answering Questions During Jury Selection or in Voting for an Acquittal of the Defendant?

  • What the News Media Can, Should, and Even Must Do

  • What the Judges and Prosecutors Can, Should, and Even Must Do

  • What Everyone Else Can, Should, and Even Must Do

• Occasions on Which A Person May Want to Consider Contacting a Lawyer for Advice in Connection With Jury Nullification in a Trump Trial (or Any Other Trial)

• What Has Anyone Done Prior to the Commencement of Jury Selection in a Trump Criminal Trial to Try to Prevent Jury Nullification From Taking Place in That Trial?

• What Are Trump, His Attorneys, His Supporters, and Others Reasonably Likely to Do to Encourage the Use of Jury Nullification Once Jury Selection Begins in One of His Criminal Trials and Throughout the Trial Proper?

  • Trump, His Lawyers and Their Assistants and Consultants, His Family, Witnesses, and Other Spectators in the Courtroom

  • Persons Standing, Sitting, or Driving Outside the Courthouse, or Standing or Sitting Inside the Courthouse But Outside of the Courtroom

  • Persons Attempting to Contact, at Their Homes or Places of Employment, Prospective Jurors, Seated Jurors, and Their Neighbors, Friends, Co-workers, and Relatives

Unless events in Justice Merchan’s Manhattan courtroom over the next week or so require me to focus my attention elsewhere, my next CCC newsletter edition--which I hope to post soon--will cover the first two of the four tentative main headings set forth above.

Here are three final coming attractions:

• As to some of the questions raised under the first of the four tentative main headings set forth above:

  • Jury nullification is indeed illegal in New York.

  • Depending upon the jurisdiction involved, there are indeed ways in which the authorities (a) can find out whether a prospective juror has intentionally withheld relevant information during jury selection, or whether a seated juror has engaged in jury nullification, and (b) can see to it that prospective or seated jurors who act in such illegal ways are punished.

• As to one of the items contained under the fourth and last main heading set forth above:

  • It may well be that, beginning this morning, people will be parading in front of Merchan’s courthouse carrying signs, distributing literature, or saying things to passersby that are designed to induce prospective jurors in Trump’s case to try to be selected for Trump’s trial and then to engage in jury nullification on his behalf if they are selected.

VII. Apology for the Typos in My Sixth CCC Newsletter

Under Headings III.A.2 and III.A.3 in my sixth , and most recent, CCC newsletter edition (posted on April 1), I indicated that it was possible that Manhattan DA Bragg’s papers responding to Trump’s motion for a change venue were due on the day that I posted that edition. Thus, I made every effort to post that edition as early as I could on that day. (It turned out that the responding papers were filed a couple of days later.)

As a result, although I ran the near-final draft of that edition through Gmail’s correction system before migrating that draft to Substack’s official template for newsletters (which has no correction feature), I did not run the final version of the edition through Gmail’s correction system again before posting the edition. Accordingly, the edition as posted contained several typos created while I was working in Substack’s template.

VIII. Answer to the Trivia Question in the Sixth CCC Newsletter

Under Heading VI.A in my sixth CCC newsletter edition (posted on April 1), I gave a brief course on adjusting the shutter speed and focal length of the lens of an SLR (single-lens reflex) camera in order to obtain a photo which is completely in focus, except that the moving water in the photo looks ghost-like. Accordingly, I entitled that the main Heading VI “Hocus Pocus by Focus.”

I ended that edition with this paragraph:

Finally, does anyone know where the “Hocus Pocus by Focus” phrase in the main Heading VI above came from? Be sure to tune in to the seventh edition of my CCC newsletter for the answer to that question.

The answer to that question can be found by reading this, and by listening to this

more than half-century-old Dutch treat.

Be seeing you,

Brian

1. The potential sentence, and the likelihood that Trump would be sentenced to a term of incarceration, would be much lower if Trump were convicted of only a misdemeanor, rather than a felony. Also, some voters who have told pollsters that they would not vote for Trump in November if he were convicted of a crime may in fact be more likely to vote for him if he is convicted of only a misdemeanor than if he is convicted of a felony.

2. Although the jury pool would seem to be more in Trump’s favor in the New York case than in the federal D.C. case, that factor cuts both ways, as explained in the paragraph two paragraphs up from the paragraph that accompanies this endnote.