AN OMNIBUS EXAMINATION OF JURY-DUTY INTERFERENCE IN TRUMP’S NEW YORK CRIMINAL TRIAL
What has already occurred and what may still be in store
Gang,
I. Introduction
In this twelfth edition of my “Contemplating Coup Convictions” (CCC) newsletter--which is also Edition D in my series on jury nullification--I will provide a vast amount of information which I believe you will find helpful in the event that there is a hung jury as to one or more of the counts in the New York indictment against Trump, and which you are likely to find quite important if the ultimate result of the trial does not yield a single felony conviction.
If the trial does result in at least one felony conviction, then at that time you may not be particularly interested in what I’ve written below, especially since you may be celebrating--a celebration which may not be called for as much as you may believe. (See Heading III in the tenth CCC newsletter edition (posted on May 4).) But even if you do celebrate, and even if that celebration were to be as justified as you may believe, much of what I have written below is highly relevant to other criminal prosecutions which should interest you--especially the other three pending against Trump.
At various points in today’s newsletter edition--primarily under Headings II.C. and II.D below--I discuss what I consider to be deficiencies in Justice Merchan’s handling of the New York criminal case against Trump. A few things need to be said here about that criticism.
First, outside of the areas I cover in today’s edition and perhaps have occasionally covered in earlier editions--and with the caveat that I have not had the opportunity to examine most of the trial transcripts or to do legal research with respect to legal issues that the transcripts might reveal--Justice Merchan seems to me to be a significantly brighter, fairer, more intellectually-honest, and more competent judge than the typical state-court judge I have come across.
Second, my criticisms of Justice Merchan in this edition are being made to demonstrate how a judge presiding over the trial of one of the Trump prosecutions could have provided greater protections against jury-duty interference than Justice Merchan has done, and appears to be likely to do for the remainder of the trial.
Third, and finally, most of the legal research I performed in connection with this edition was performed at a time when it appeared that the New York case would be the last of the Trump prosecutions to go to trial. In other words, while I am quite confident that the federal courts--especially the D.C. Circuit Court of Appeals--would approve of virtually all, and perhaps all, of the recommendations I have made in the past about how a judge should protect against jury-duty interference in a Trump criminal trial, I have not had the opportunity to do nearly as much research into New York law in that area. Depending upon the result of the current trial before Justice Merchan, it may be appropriate for me to further engage in that New York research and report on it in one or more future newsletter editions.
In light of the length of this newsletter edition, I’ll leave it to the table of contents, appearing immediately below, to introduce the various segments of the edition.
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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. The Three Areas in Which Justice Merchan Has Failed to Protect Against Jury-Duty Interference
A. Overview
B. Protecting Against In-Courtroom Interference on the Part of Trump, Defense Counsel, Defense Witnesses, and Pro-Trump Spectators
C. Protecting the Anonymity of the Selected Jurors
D. Protecting Against Jurors’ Trying to Be Selected So That They Can Engage in Jury Nullification, and Protecting Against Selected Jurors’ Engaging in Jury Nullification
III. Jury-Duty Interference That Already Has Occurred
A. Past Interference of Which I Am Aware
1. In the Courtroom
a. By Trump and/or By the Absence of Full Juror Anonymity
b. By a Defense Witness and By Trump-Supporting Spectators
(1) News Articles
(2) My Analysis
2. Outside the Courtroom
a. By Trump, His Attorneys, His Supporters, and Others
b. By Various Other Persons Encouraging Jury Nullification
B. Unknown Past Interference
1. By Trump’s Operatives
2. By Trump Supporters
IV. Jury-Duty Interference That May Occur During the Remainder of the Trial
A. In-Courtroom Jury-Duty Interference That May Still Come
1. Generally
2. By Trump
3. By Defense Counsel
4. By Spectators
a. Who Will Be Among the Spectators in the Courtroom Today?
b. Who Will Be Among the Spectators in the Courtroom on Subsequent Days?
5. The Potential Mistrial Dilemma
B. Out-of-Courtroom Jury-Duty Interference That May Still Come: Jury Nullification
1. By a Juror Attempting to Engage in Jury Nullification
2. By a Juror Attempting to Cause One or More Other Jurors to Engage in Jury Nullification
3. Potential Ways That an Attempt at Jury Nullification May Be Thwarted
V. What Happens If There Was Successful Jury-Duty Interference?
A. Jury Nullification
1. A Juror’s Intentional Deceptive Behavior to Try to Get on a Jury, As Well As a Juror’s Engaging in Jury Nullification, Constitute Criminal Behavior
2. If a Juror Engages in Such Criminal Conduct--Especially in the Trump Prosecutions--A Prosecutor Would Be at Least Reasonably Likely to Be Able to Discover and Prove It
3. In Criminal Prosecutions Such as Those Against Trump, Prosecutors Should Investigate Suspected Cases of Jury Nullification and Prosecute Them When Supported by the Investigation
B. Juror Intimidation or Bribery
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II. The Three Areas in Which Justice Merchan Has Failed to Protect Against Jury-Duty Interference
A. Overview
Under Headings II.F.1 and II.F.2 in my eighth CCC newsletter edition (posted on April 23), I laid out a slew of bullet points containing recommendations as to what a judge can, should, and even must to handle a criminal trial with a defendant like Trump. Under Heading IV in the eleventh edition, I examined the extent to which Justice Merchan has acted in accordance with the bullet-point recommendations concerning the protection against in-courtroom jury-duty inference. Under Heading II.B below, I will briefly recap that examination.
Under Heading II.C below, I will examine the extent to which Justice Merchan acted in accordance with the bullet-point recommendations which concerned the protection of the anonymity of the selected jurors. And under Heading II.D below, I will examine the extent to which he acted in accordance with the bullet-point recommendations which concerned the protections against jurors’ attempts to engage in jury nullification.
B. Protecting Against In-Courtroom Interference on the Part of Trump, Defense Counsel, Defense Witnesses, and Pro-Trump Spectators
Under Headings IV.A and IV.B in my eleventh CCC newsletter edition (posted on May 19), I demonstrated in great detail how Justice Merchan has failed to take appropriate steps to protect against in-courtroom jury-duty interference on the part of Trump, defense counsel, defense witnesses, and pro-Trump spectators.
C. Protecting the Anonymity of the Selected Jurors
Under Heading IV.A in my eleventh CCC newsletter edition (posted on May 19), I focused on the portions of the text under Heading II.F.2 in the eighth edition (posted on April 23) which concerned what the judge should do during the trial proper to prevent a criminal defendant like Trump, defense counsel, defense witnesses, and pro-defendant spectators from engaging in jury-duty interference in the courtroom. In Endnote 2 in that eighth edition, I noted that “Heading II.F.1 focused on the matter of maintaining the anonymity of the jurors.”
This is what I wrote under that Heading II.F.1 in the eighth edition:
First, the judge must do everything within his or her legal power to maintain the anonymity of the seated jurors. If the judge does so, then (a) the jurors will have little if any cause to fear (1) that they or their family members will face retribution if they vote to convict the defendant, or (2) that they or their family members (or neighbors, friends, coworkers, etc.) will be pestered by anyone for information, or otherwise, during or after the trial, and (b) there will be little if any opportunity for anyone to try to bribe the jurors into voting to acquit the defendant.
Among the methods the judge should consider using, after having performed the necessary research to confirm that using them would not be prohibited in the jurisdiction in question, are:
having the names and addresses of prospective and seated jurors unknown to the defendant, the attorneys, the news media, the public, and each of the other prospective and seated jurors;
excluding the news media and the general public from attending jury selection, while making redacted transcripts of the jury selection available to them at appropriate intervals;
ordering the defendant and the attorneys and their staffs (including consultants) in the courtroom not to divulge to anyone (except each other) anything that occurs during jury selection, at least not until the jury is discharged;
ordering the attorneys not to ask certain questions during jury selection that would unnecessarily risk identifying the prospective jurors;
advising the defendant and the attorneys and their staffs (including consultants) of the matters concerning the court’s contempt powers set forth in the six bolded bullet points under Heading II.F.2 below;
providing prospective jurors with advance guidance as to what potentially identifying information they should not reveal during jury selection;
sua sponte (that is, even if no objection is raised by an opposing attorney) ordering a juror not to answer a question posed by an attorney during jury selection, or ordering the juror to only answer so much of the question;
providing special transportation and entrance to, and exit from, the courthouse for the seated jurors; and
coordinating with the administrative judge, other court officials, prosecutors, and the police to provide police surveillance of the residences of the seated jurors from the point when they are selected to serve on the jury at least until the point when the jury is discharged.
However, as to each of the recommendations contained in those nine bullet points, Justice Merchan either never employed the recommendation or, if he did eventually employ it, his doing so was too little and too late.
The most important of the recommendations, of course, appear in the first two bullet points: (1) having the jury be fully anonymous, whereby the names and addresses of the prospective and selected jurors are not known to the parties, their attorneys, the news media, or each other; and (2) closing the jury-selection process to the public, including the news media.
DA Bragg did not request, and Justice Merchan explicitly declined to even raise the issue on his own, that either of those two options be employed. In particular, in his Decision and Order of March 7 (at page 3) granting the prosecution’s motion to restrict access to the names and addresses of prospective and selected jurors to the parties and their attorneys, Justice Merchan wrote:
To be clear, the parties have not requested, and this Court has not agreed, to close the Courtroom during jury selection or at any other time during the proceedings. Access to the courtroom by the public and the press will not be tempered in any way as a result of these protective measures.
Moreover, it must be noted that in four subsequent written rulings--two imposing the gag orders on Trump, and two finding Trump in contempt for violating those gag orders--Justice Merchan, citing the most important U.S. Supreme Court decision on the subject, repeatedly and explicitly recognized that it is the duty of the trial judge to act preemptively to ensure that the jurors are not exposed to improper information or pressures, and to control those connected to the case to ensure that the news media does not obtain information which, if disseminated publicly, would result in precisely such forbidden exposure. (See Heading III.A.1.b.(2) below.)
Additionally, although Justice Merchan did implement some of the other bulleted recommendations quoted above once it became obvious during jury selection that his failure to adopt the primary options was a disaster, those secondary options proved to be both too little and too late. (See, e.g., this.)
It is also important to contrast Justice Merchan’s handling of the question of protecting the jurors’ anonymity with what U.S. District Judge Lewis Kaplan wrote in his March 23, 2023 Memorandum Opinion regarding the first E. Jean Carroll civil case to go to trial.
On his own motion, Judge Kaplan raised the issue of using the first bulleted recommendation above: full jury anonymity. While the parties did not object, the Associated Press and the (New York) Daily News did. Nevertheless, citing Trump’s past conduct--including his public statements about jurors that led to threats made against the jurors--and citing criminal appellate decisions handed down by the United States Court of Appeals for the Second Circuit, he adopted the option of fully anonymity of the jury, not only as to the names and addresses of the prospective and selected jurors, but also as to their places of employment.
And Judge Kaplan did this despite the fact that there was considerably less reason to adopt that option in the case before him than there was in the New York criminal case:
Trump had a much smaller interest in avoiding an adverse jury verdict in the civil case than in the criminal case, as his liberty was not at stake, and as all that Carroll was seeking in that trial was an unspecified amount of damages which ultimately resulted in a jury verdict of $5 million--a small amount when contrasted with the great wealth he claimed to possess at that time. (See, e.g., this.)
On the question of the dangers to the jury posed by Trump and his supporters, Judge Kaplan on March 23 of last year did not have before him: the wealth of threatening public statements Trump made once the four indictments against him were filed; the ways in which some of those statements had led to threats, and even acts, of violence; and the other ways in which Trump acted in and out of court with respect to those four prosecutions and to the other civil cases pending against him. (See, e.g., the seventh through ninth and fifteenth bolded items under Heading V in my fifth CCC newsletter edition (posted on March 17).) Indeed, the prosecution’s February 22, 2024 motion papers which led to Justice Merchan’s March 7 Decision and Order itemized (at pages 2 through 8) 26 relevant incidents supported by 28 exhibits distributed over almost 250 pages. Many, if not most, of those incidents occurred after Judge Kaplan issued his Memorandum Opinion, and did not appear in my fifth edition because I was unaware of them at the time I posted that edition.
Trump’s supporters who are disposed to engage in illegal conduct to help Trump would be more likely to do so in a criminal case against him than in a civil case.
Indeed, shortly after Judge Kaplan issued his March 23, 2023 Memorandum Opinion, both parties moved him to reconsider his ruling. But on April 10, Judge Kaplan issued a Memorandum and Order in which he rejected that joint motion. He wrote (on page 2):
The likelihood of such difficulties since the Court made those findings only has increased. That is so in view of Mr. Trump's public statements, characterized by the media as attacks against the New York State judge presiding over the recently filed New York State criminal case against Mr. Trump and the threats reportedly then made, presumably by Mr. Trump's supporters, against that judge and members of his family. Nevertheless, despite never having objected to the use of a fully anonymous jury despite ample opportunity to do so, both parties now seek to raise that subject for the first time.
(Footnote omitted.)
Finally, it should be noted that it was only six days after the New York indictment was released to the public that Judge Kaplan issued the Memorandum and Order. And, of course, “the New York State judge” mentioned in that ruling was none other than Justice Merchan.
D. Protecting Against Jurors’ Trying to Be Selected So That They Can Engage in Jury Nullification, and Protecting Against Selected Jurors’ Engaging in Jury Nullification
The last several bullet, and sub-bullet, points under Heading II.F.2 in my eighth CCC newsletter edition (posted on April 23) recommended actions to be taken by a judge--faced with a criminal defendant like Trump--designed to protect against juror’s trying to be selected so that they can engage in jury nullification, and protecting against selected jurors’ engaging in jury nullification. These were the most important of those bullet and sub-bullet points:
advising the prospective jurors at the outset of jury selection:
not only that they must swear or affirm, under the penalties prescribed for perjury, “to tell the truth, the whole truth, and nothing but the truth” when answering the questions posed to them during jury selection, but also that the requirement that they tell “the whole truth” means that they may not try to avoid giving answers that might disqualify them or lead an attorney to excuse them from service on the jury, such as by trying to construe the wording of questions in a narrow or strained manner; and
that if they are selected to serve on the jury, then they will be required to swear or affirm, under the penalties prescribed for perjury, that if, at the end of the case, and based solely on the law as provided to them by the judge and the evidence which the judge has admitted into evidence, that they will vote “guilty” as to any and every count in the indictment as to which they believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt, and that otherwise they will vote “not guilty”; [and]
as part of the swearing in of the selected jurors, having them swear or affirm, under the penalties prescribed for perjury, that if, at the end of the case, and based solely on the law as provided to them by the judge and the evidence which the judge has admitted into evidence, that they will vote “guilty” as to any and every count in the indictment as to which they believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt, and that otherwise they will vote “not guilty” . . . .
Unfortunately, Justice Merchan did not employ any of those recommendations.
Instead, as can be seen on page 105 of the transcript of the first day of jury selection, jury selection began with the first panel of prospective jurors this way:
THE CLERK: Can all of the prospective jurors please stand and raise your right hand.
Do you solemnly swear or affirm that you will truthfully answer all questions put to you relevant to your qualifications to serve as jurors in the case of The People of the State of New York against Donald J. Trump? Do you swear or affirm?
(AFFIRMATIVE RESPONSE FROM PROSPECTIVE JURORS)
THE CLERK: Thank you.
You may be seated.
(Transcript line numbers omitted.)
Similarly, as can be seen on page 163 of the transcript of the second day of trial, this is all that occurred when the first group of selected jurors were sworn to serve:
COURT CLERK: Will the unsworn jurors please rise
and raise your right hand.
Do you solemnly swear or affirm that you will try
the case of the People of the State of New York against
Donald Trump in a fair impartial manner and to the best of
your ability render a true verdict according to the law and
evidence, do you swear or affirm?
JURORS: Yes.
COURT CLERK: Thank you, you may be seated.
(Transcript line numbers omitted.)
Under Headings V.A, V.B, and V.D in my seventh CCC newsletter edition (posted on April 15, before court opened on that day, which was the first day of jury selection), I set forth two reasons as to why the following of the above bulleted and sub-bulleted recommendations is necessary in a criminal trial in which Trump is a defendant.
First, I indicated that one can readily find on the Internet postings that, whether using the term “jury nullification” or not, explicitly or implicitly:
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;
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;
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 [sic] and thus will be able to engage in jury nullification;
proffer ways in which a seated juror can attempt to induce other jurors in the case to engage in jury nullification as well;
state that a seated or prospective juror cannot be punished for engaging in the practices listed under Items 1 to 4 above; and/or
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.
Second, I indicated that one can readily find on the Internet postings recommending that jurors use jury nullification in the Trump criminal trials.
Since that early April 15 posting of the eighth edition, information arose which made it even more important that those recommendations be followed in Trump’s criminal trial in New York.
As I noted under Heading II.E.1 in that eighth edition, on April 18, the prosecution filed a motion to have Trump held in contempt on ten counts. One of those counts involved Trump’s posting on Truth Social on the evening of April 17, "'They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury,' Jesse Watters." And, in his Decision and Order on April 30, Justice Merchan found Trump in contempt on that count and eight others.
But, as I also observed under Heading II.E.1 in the eighth edition, there was something bad about Trump’s ‘re-post’ aside from its having violated the justice’s gag order and its putting prospective and selected jurors at risk: It also implied to Trump supporters who might be summoned for duty in Trump’s New York criminal trial that they themselves should be “lying to the Judge in order to get on the Trump Jury,” perhaps so that they could counteract the actions of the “Liberal Activists” by engaging in jury nullification.
Moreover, Trump supporters who did not see or otherwise learn about Trump’s post on the evening of April 17 may nevertheless have been tuned to Fox when Watters actually made that statement earlier that day. See this.
Finally, one might wonder why it was that the prosecutors did not ask Justice Merchan to guard against jury-duty interference more than they did ask. At least if the current trial ends without a felony conviction, in a later CCC newsletter edition I will demonstrate: not only that the overall positions taken by the prosecution (and Justice Merchan) in that regard was indefensible, but that it is even more indefensible on the basis of additional matters in the record of the case that I haven’t yet mentioned.
III. Jury-Duty Interference That Already Has Occurred
A. Past Interference of Which I Am Aware
1. In the Courtroom
a. By Trump and/or By the Absence of Full Juror Anonymity
As I discussed under Heading IV.C in my eleventh CCC newsletter edition (posted on May 19), as a result of the combination of Trump’s in-court behavior in the New York criminal trial and the failure of Justice Merchan to properly protect the anonymity of the jury, the following has occurred in the courtroom:
one of the originally-selected jurors was excused before the taking of testimony began because of the juror’s fear that the juror could be identified by news media reports;
another of the originally-selected jurors expressed concern for physical safety based on the distinct possibility or probability of being identified, but Justice Merchan talked the juror into remaining on the jury for now;
at least one of the selected jurors , in the presence of the many of the prospective jurors, was being intimidated by Trump while being questioned; and
all of the selected jurors were present when Trump cursed and gestured at Stormy Daniels while she testified during the trial.
Moreover, others of the selected jurors may have learned from one or both of the two complaining jurors, or from the grapevine among the prospective jurors, of the fears expressed by those two jurors, or may on their own have developed those fears but did not report them to Justice Merchan.
Finally, the selected jurors learned, not only that the defense team had learned the identities of the jurors, but also that the defense team had trawled the Internet to find the jurors’ posts on social media. (See, e.g., this (at pages 123-26, 134-37, 146-48, & 153-56.) Thus, each of those jurors has more reason to fear than they might have before s/he ever entered the courtroom in mid-April that if the juror were to vote to convict Trump--especially of a felony--then the juror and the juror’s family would be in danger of retribution from Trump: retribution, not only via physical or property harm, but by being publicly defamed with allegations that are true or false. (See Heading IV.C in my eleventh CCC newsletter edition.)
b. By a Defense Witness and by Trump-Supporting Spectators
(1) News Articles
Under Headings II.E.1 and II.E.2 in my seventh CCC newsletter edition (posted on April 15), I briefly mentioned the possibility that one or more of the spectators in the courtroom might engage in jury-duty interference. Then, under Heading IV.F in the eleventh edition (posted on May 19), and citing a Times article from May 16, I noted how greater and greater numbers of federal legislators were sitting in the courtroom during the New York trial, and how those legislators may believe that they have little to worry about if they engage in conduct in the courtroom designed to influence the jurors.
Since posting that eleventh edition on May 19, I have come across three news articles which provide evidence suggesting that Trump is indeed using his supporters’ presence and actions inside the courtrom to try to influence the jury, and that federal legislators are less concerned about facing consequences for their behavior in the courtroom than typical courtroom spectators are.
First, on May 18, the New York Times published online this article which was updated the following day. Here are the relevant excerpts:
There are few distractions in the courtroom while Donald J. Trump’s criminal trial is in session. Lawyers and witnesses talk. Onlookers are tense and silent. And a squadron of armed court officers and Secret Service agents guards the room.
But as Michael D. Cohen explained this week why he had broken with his former boss in 2018, after saying he spent more than a decade doing Mr. Trump’s bidding, reporters turned away from him to stare at one of the trial’s most noticeable interruptions.
A parade of Mr. Trump’s Republican allies — a governor and a former presidential candidate, among others — marched into the courtroom, living examples of the loyalty that Mr. Cohen had just described, and would soon disavow.
. . .
But whether Mr. Trump is convicted, acquitted or the case ends with a hung jury, the trial has underscored the former president’s favored tactics and behavior over the decades — using allies as bullies . . . .
. . .
Inside the building, Mr. Trump’s entourage has stretched the bounds of what courthouse rules allow. Some of his allies take advantage of exceptions granted to lawyers and support staff by sitting in the defense rows, using cellphones that are banned elsewhere in the courtroom to send texts or post on social media about the proceedings.
. . .
Some allies have made plain their goal was to attack trial witnesses in ways that Mr. Trump has complained he has been prevented from doing himself because of a gag order that he’s already been fined for violating.
“Hopefully we’ll have more and more senators and congressmen go up every day to represent him and be able to go out and overcome this gag order, and that’s one of the reasons we went — is to be able to speak our piece for President Trump,” Senator Tommy Tuberville, the Republican of Alabama who attended the trial on Tuesday, said.
On Tuesday, some of the same allies who interrupted Mr. Cohen’s testimony filmed a video of themselves in the holding room the defense uses, again testing the bounds of what is permitted. Mr. Trump’s son Eric, his daughter-in-law, Lara, his former rival Mr. Ramaswamy and two House members filmed a video titled “Breaking Video From the Courthouse.”
. . .
On Thursday, after prosecutors mentioned the interruption during Mr. Cohen’s testimony two days earlier, Justice Juan M. Merchan advised Mr. Blanche not to let it happen again. The defense lawyer protested, saying he had “less than zero control over what is happening.” And when Justice Merchan asked him if he was expecting anybody else that day, Mr. Blanche pleaded ignorance.
“Your Honor, I have no idea,” he said, adding, “No, I’m not expecting anybody else. But I might be wrong.”
He hardly needed anybody else. Mr. Trump’s entourage that day included 11 members of Congress, as well as Mr. Epshteyn and Eric Trump. The group had already taken their seats behind the defense table, waiting to see Mr. Cohen cross-examined.
Second, this newsletter was published online by the Washington Post later on the evening of May 19. Here is the relevant excerpt:
Trump is under limited gag orders in the New York case and his pending D.C. case. But vitriol, like love, finds a way. Last week, that way was a string of GOP politicians, including House Speaker Mike Johnson (R-La.), who came to the courthouse to praise Trump and denounce Cohen — a thing Trump is very explicitly barred from doing.
The parade of politicians also annoyed prosecutors, who complained to the judge that they were coming in and out of the courtroom in the middle of testimony. The judge sympathized, but it’s often hard to tell Congress what to do.
(Links omitted).
Third, and finally, there is this article published by the Times online on May 20 and updated the following day. Here are excerpts:
On a pivotal day in the first criminal trial of an American president, the courtroom threatened to spin out of control.
The prosecution’s star witness, Michael D. Cohen, admitted on the stand to stealing from former President Donald J. Trump’s company. Mr. Trump’s courtroom entourage included three supporters charged with felonies of their own. And the defense’s only real witness was so defiant that the judge, after excoriating him, cleared the courtroom.
The trial’s first five weeks featured dramatic descriptions of sex and scandal, and the final phase of testimony on Monday showed no signs of a letup, as the courtroom played host to a nonstop spectacle.
The tension came to a head after the prosecution rested its case and the defense called its witness, Robert J. Costello, a lawyer who had once advised Mr. Cohen. The defense saw Mr. Costello as a foil to Mr. Cohen, Mr. Trump’s onetime personal lawyer and longtime henchman.
But the strategy may not have paid off: The judge promptly lost his patience with Mr. Costello, a prosecutor turned defense lawyer and a fixture in New York’s legal world. When Mr. Costello scoffed at one of the judge’s rulings — “jeez,” he said, before mumbling a retraction — the judge grew irate.
Excusing the jury, the judge, Juan M. Merchan, lectured Mr. Costello: “If you don’t like my ruling, you don’t say ‘jeez,’ and you don’t say ‘strike it,’ because I’m the only one who can strike testimony in court,” he said, adding, “Are you staring me down?”
He ordered the courtroom cleared, briefly ejecting reporters and other onlookers, while allowing Mr. Trump’s supporters to remain. When those told to leave did so, according to a transcript, he told Mr. Costello that his conduct was “contemptuous” and said, “If you try to stare me down one more time I will remove you from the stand,” adding, to the defense lawyers, “I will strike his testimony, do you hear me?”
. . .
Mr. Cohen took the stand Monday amid a uniquely Trumpian display, as an eclectic entourage of the former president’s supporters — several with legal troubles of their own — packed the courtroom.
The group of more than a dozen included not only Republican lawmakers . . . but also a legal adviser to Mr. Trump who is under indictment in Arizona, Boris Epshteyn, and Bernard Kerik, the former New York police commissioner whom Mr. Trump pardoned for federal felony charges. And there was Chuck Zito, a former leader of the New York chapter of the Hells Angels motorcycle gang, a man with jet-black hair in an Elvis-style swoop who had spent years in prison on drug charges.
They swept into the courtroom to back up Mr. Trump as his face-off with his former fixer and current nemesis continued.
(2) My Analysis
As usual, the news media are viewing essentially everything in the case before Justice Merchan through the lens of Trump’s trying to win the New York trial by raising a reasonable doubt in the minds of the jurors, while the media are making no mention of jury-duty interference. Thus, those articles seem to assume that the only reason for Trump’s having a former leader of a notorious motorcycle gang and others entering the courtroom in ways that cause a disturbance is to rattle Cohen while he is being cross-examined. Similarly, the articles seem to presume that the only reason why attorney Costello was called as the final, and primary, defense witness was to try to undermine Cohen’s credibility.
However, it hardly seems realistic to believe that Cohen would be rattled by such matters. And it hardly seems that a reasonable doubt would be raised in the minds of the jury by an attorney who acts offensively toward the judge.
On the other hand, those matters could have worked reasonably well as instances of jury-duty interference. Having Trump-supporting spectators and a Trump-supporting witness act like they can run the courtroom can send signals to the jury (a) that the jurors themselves don’t have to take the judge or the proceeding seriously and thus should feel entitled to engage in jury nullification if they so desire, and/or (b) that Trump’s supporters do not feel restrained by the law and therefore the jurors might fear their wrath if they vote to convict Trump. Indeed, when Justice Merchan chewed out Trump through his lawyer regarding Trump’s “cursing audibly, and . . . shaking his head visually” during Stormy Daniels’s testimony, the justice specifically noted that the he was concerned, not only that Trump’s behavior might have been affecting Daniels’ testimony, but also apparently that the jurors might have felt intimidated as well because “the jury can see that.” (See Heading IV.C in my eleventh CCC newsletter edition (posted on May 19).)
Moreover, lest those three articles mislead the reader, Justice Merchan not only had as much legal power to restrict the movements and other activities of federal legislators and other governmental officials in his courtroom as he has with ordinary members of the public, but he has the legal duty to do so to ensure that the jurors’ decisions are not improperly affected by what they see and hear in the courtroom. Indeed, in his two gag orders (see this and that) and in his two orders finding Trump in contempt for violating the gag orders (see this and that), Justice Merchan repeatedly relied upon the U.S. Supreme Court’s decision in Sheppard v. Maxwell for the proposition that it is the duty of the trial judge to act preemptively to ensure that the jurors are not exposed to improper information or pressures.
The Sheppard case involved the 1954 trial of Dr. Samuel Sheppard, who was charged with the brutal murder of his wife in their home in a suburb of Cleveland. In 1966, the Supreme Court, with only one justice dissenting, reversed Sheppard’s conviction on the ground that the trial judge had miserably failed in his duty to control all persons in the courtroom and persons outside of the courtroom who were directly involved in the case. The Sheppard case: (a) today remains the main Supreme Court case standing for the proposition that it is primarily the duty of the trial judge to protect the jury from improper influences; (b) made attorney F. Lee Bailey a household name for his representation of Sheppard on appeal, including in the Supreme Court; and (c) spawned the 1960s’ TV show “The Fugitive.”
Of course, according to the Sheppard decision, Justice Merchan should not have been going through Trump’s attorney to control people in the courtroom over whom the attorney has no power. Indeed, under Heading II.F.2 in my eighth CCC newsletter edition (posted on April 23), I recommended that a judge presiding over any of the Trump criminal trials should:
at the beginning of each portion of the trial before any prospective or seated jurors are present in the courtroom, advis[e] everyone seated in the parts of the courtroom reserved for accredited members of the news media and non-news media spectators:
that while in the courtroom, they must remain silent and not communicate with anyone in any manner, except they may quietly inform a court officer if there is a medical or similar emergency, and except that accredited member of the news media may use their cell phones to silently write and send texts;
that the court has both the power and willingness to cite for summary contempt those who violate the court’s orders, and to punish contemnors with incarceration, and not simply fines, where the court deems it appropriate; and
that the court’s contempt powers are exclusive of the prosecutor’s power to investigate and prosecute instances of non-summary contempt, jury tampering, and obstruction of justice, whether they occur inside or outside of the courtroom.
Unfortunately, Justice Merchan does not appear to have done any of that at any time during the trial. Had he done so, he probably would not have had the problem with the spectators on May 20. (See Heading III.A.1.b.(1) above.)
Indeed, it is quite curious that when Justice Merchan took the rare action of excluding the news media when he berated the final defense witness for the witness’s contemptuous behavior, he did not also exclude “Mr. Trump’s supporters.” Presumably, he thought that he could put the fear of God into all current and future spectators merely by chewing out a lawyer in front of the Trump supporters who were in the courtroom at the time. Note that, although he advised Costello that the witness’s behavior was “contemptuous,” he never even threatened to hold Costello in contempt. He merely threatened to remove him from the witness stand and strike his testimony.
Again, though, these indirect methods have not worked in the past, especially where there had been no prior face-to-face mention by Justice Merchan to the contemnor of the possibility of incarceration for contemptuous behavior. (See Heading IV.B.1 in my eleventh CCC newsletter edition.) Indeed, Justice Merchan has not even mentioned the possibility of contempt directly to any of the spectators. And the federal legislators are especially unlikely to be concerned about repercussions than the average Trump-supporting spectator, both because of the radical Republicans’ inflated view of the Speech or Debate Clause in the U.S. Constitution (see Heading IV.F in the eleventh edition), and because the justice has already told Trump how reluctant Justice Merchan is to detain him in light of his having been president and his perhaps becoming president again (see Heading IV.G in the eleventh edition). In contrast, the federal legislators are currently federal legislators, and they are not accused of having committed crimes; much less are they on trial.
Finally, as I indicated earlier in the final sub-bullet point under this Heading III.A.1.b.(2) above, spectators, like everyone else in the courtroom, should be made aware that their courtroom conduct designed to affect the jury can involve, not only summary contempt findings by the judge--which carry at most a 30-day carceral sentence per violation--but also can involve full prosecutions by the District Attorney for felonies such as jury tampering and obstruction of justice. Again, though, Justice Merchan did not make the spectators aware of that.
2. Outside the Courtroom
a. By Trump, His Attorneys, His Supporters, and Others
Under Heading V.B in my seventh CCC newsletter edition (posted on April 15), I discussed various public statements initially made and/or repeated by Trump, his attorneys, his supporters, and others (including the news media) which would indirectly encourage jurors in Trump criminal prosecutions to engage in jury nullification.
Also, as I indicated under Heading II.D. above, in the middle of jury selection in the New York criminal trial, a Fox TV host stated, “They are catching undercover liberal activists lying to the judge in order to get on the Trump jury,” and then Trump promptly posted that quote on Truth Social. As I explained under that heading, both the original statement and Trump’s re-posting of it
implied to Trump supporters who might be summoned for duty in Trump’s New York criminal trial that they themselves should be “lying to the Judge in order to get on the Trump Jury,” perhaps so that they can counteract the actions of the “Liberal Activists” by engaging in jury nullification.
b. By Various Other Persons Encouraging Jury Nullification
Under Headings V.A, V.C, and V.D in my seventh CCC newsletter edition (posted on April 15), I discussed how the Internet is chock full of encouraging information and advice about the use of jury nullification in general and in the context of Trump trials in particular.
B. Unknown Past Interference
1. By Trump’s Operatives
Ever since Trump was permitted prior to jury selection to learn the identities of the prospective (and thus ultimately of the selected) jurors, the selected jurors and their family members have been at serious risk of encountering bribe offers or threats to their safety and privacy from Trump or persons acting on his behalf. I explained this under Heading II.D in my eighth CCC newsletter edition (posted on April 23).
Put simply: Even when Trump’s liberty, and his chances of winning an upcoming presidential election which he was favored to win, were not at stake, Trump was perfectly willing to quite openly engage in a coup against the American government, culminating in his encouragement of an insurrection on January 6, 2021, which he knew was likely to cause, and in fact did cause, massive serious personal injury and even deaths. So why would he refrain from having his operatives threaten or bribe jurors in his New York criminal case in order to obtain at least a hung jury for him so that he will not have to go to prison and so that his chances of winning the presidential election will be increased (or so he likely believes)--a win which would end the more serious criminal prosecutions against him?
Nevertheless, so many improper influences have already been brought to bear on the jurors in the New York trial (see, e.g., Heading III.A above) that Trump may well have decided against adding more fuel to the fire by encouraging the making of threats against, or bribes offers to, selected jurors. For there can still be downside risks if Trump were to engage in such encouragement.
Most importantly, as I explained under Heading IV in my seventh CCC newsletter edition (posted on April 15), Trump’s chances of being convicted in the federal D.C. prosecution (and in the remainder of the criminal prosecutions pending against him) are increased each time he engages in improper behavior in the New York case. That is because the judges and prosecutors in the other three cases would be more willing at an earlier stage of the prosecution to do things, and will have more justification for doing things at an earlier stage, which would decrease Trump’s opportunities to engage in improper behavior in those cases and thus would increase the likelihood of conviction in those cases.
In this connection, it should be noted once again that people are placing too much emphasis on the question of whether or not a conviction is obtained in one or more of the Trump prosecutions before Election Day in November. Under Heading III in my tenth CCC newsletter edition (posted on May 4), I let the super-pollster Nate Silver point out some problems with the notion that a conviction (let alone a misdemeanor conviction in New York) will have much of an effect on the election outcome.
Here, I’ll briefly point out that there can be an enormous amount gained by Trump opponents if the federal D.C. criminal trial commences, but is not over, before Election Day in November. The voting public would be exposed once again, but this time right up to Election Day, with what Trump said and did in relation to his attempted coup. And if Trump were to lose the election and, as very likely would then happen, were to be convicted in D.C., then he would be at least reasonably likely to spend all, or virtually all, of the rest of his life in a prison cell (except that he may well be released pending sentencing and appeal).1
It should also be noted that another factor in Trump’s calculus regarding the extent to which he should engage in jury-duty interference is what he believes his chances are of getting a hung jury in the New York trial without any further interference. From the outset of the filing of the four indictments against Trump, the New York prosecution always presented the greatest chance for Trump to avoid a conviction. (See, e.g., Heading IV in my seventh CCC newsletter edition.) And as I noted under Heading IV in the eleventh edition (posted on May 19), Trump may well now believe that he has an even greater chance of avoiding a conviction before Justice Merchan than he had originally thought.
Finally, as I will now explain, even if Trump has already had his supporters try to bribe jurors or threaten the jurors or their family members, such bribe and threat attempts, successful or not, may become public as earlier as today, but perhaps not for months or even many years.
Once the jurors enter the courtroom later today, Trump and his supporters will essentially no longer have an opportunity to attempt to bribe or threaten the jurors outside of the courtroom. (See Heading IV.A.1 below.)
This past holiday weekend, and the days preceding it, would have presented the optimal time for such bribe offers or threats to be attempted. For if such attempts were to lead to a mistrial, then the maximum amount of time which could have been eaten up by the aborted trial will have been obtained.
Why might such attempts lead to a mistrial? If threats against jurors or their families result in at least seven of the eighteen selected jurors (twelve regular jurors and six alternate jurors) successfully requesting that they be excused later today--perhaps on the simple ground that they tell Justice Merchan that they no longer believe that they can be fair and impartial--then there will no longer be the legally-required twelve jurors for the acceptance of a verdict.
Indeed, successful threats against seven jurors (or their family members) may not be needed for a mistrial to be declared. Once an unthreatened juror sees fellow jurors bailing, the unthreatened juror may get the message and successfully ask to be excused.
On the other hand, the public could learn as early as today, or shortly after the trial ends, of bribe or threat attempts which do not result in a mistrial. Jurors (or their family members) might at some point advise Judge Merchan, or other people, that such attempts were made, and eventually the existence of the threats would make its way to members of the news media.
On the third hand, however, bribe or threat attempts may not become public for months or years. A juror who is successfully bribed or threatened would try to keep the bribe a secret for as long as possible. And even if a juror did not succumb to a threat to the juror or a family member of the juror, the juror (or family member) might have succumbed to the related threat of physical or other harm if the threat were exposed.
But most secrets eventually come out, even if it takes years. And secrets concerning the Trump trials are more likely to come out sooner than those in other criminal trials, as prosecutors, other government officials, the news media, historians, and others will be looking and looking and looking, at least if Trump is not convicted of a felony by the New York jury.
2. By Trump Supporters
Especially in light of Trump’s two attacks on the New York jurors on social media--particularly the one that said “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury” (see Heading IV.C in the eleventh edition), the jurors and their families have been at risk of being threatened by Trump supporters who are willing to act unlawfully to help Trump. While in theory only Trump and his defense team know the names and addresses of the jurors, it is hard to believe that that information has not leaked out from them to an ever-widening circle of people. Also, the reports in the news media about the jurors have made them identifiable even without their provision of their names and addresses. (See, e.g, Heading III.A.1.a above.)
IV. Jury-Duty Interference That May Occur During the Remainder of the Trial
A. In-Courtroom Jury-Duty Interference That May Still Come
1. Generally
If the case were to proceed normally today, then basically the last time that Trump and/or his associates will have the opportunity to engage in jury-duty interference outside of the courtroom will be just before the jurors enter the courtroom this morning. For what would follow upon their entering the courtroom would be the closing arguments (aka ‘the summations’ of the attorneys) and then the judge’s instructions (aka ‘the charge’) to the jury, and then jury deliberations. Once the judge charges the charge, the jury will remain in the custody of the court officers until the judge discharges the jurors, with the jurors sequestered in a hotel when not in the courthouse.
So once the jurors enter this morning, if Trump or his supporters wish to engage in any further jury-duty interference in the case, they essentially would have to do so while the jury is in the courtroom. A fairly exhaustive list of the reasons why the jury would return to the courtroom once deliberations have begun appears under Heading IV.A.4.b below.
All other things being equal, improper statements or behavior in the courtroom that the jurors hear or see can have much more effect on the jurors than things that happened earlier in this trial, which began over a month ago. Thus, it is entirely possible that Trump and/or his supporters may reserve their final attempts at jury-duty interference for later today and thereafter inside the courtroom.
2. By Trump
Under Heading II.E.2 in my eighth CCC newsletter edition (posted on April 23), I provided examples of the sorts of improper things that Trump might say within earshot of the jurors--from the start of the day this morning until the jury has rendered a final verdict that the judge has accepted--in the hopes of (a) getting one or more jurors to engage in nullification; (b) intimidating the jury; or (c) bribing the jury. Also, during that period, Trump may well try to use facial, manual, or other bodily gestures to intimidate the jurors, as he did during jury selection with at least one of the jurors, and with Stormy Daniels during her testimony (see Heading IV.C in my eleventh CCC newsletter edition (posted on May 19), and as Trump’s second and final defense witness, Robert J. Costello, tried to do with Justice Merchan (see Heading III.A.1.b.(1) above).
3. By Defense Counsel
In their closing arguments (aka ‘summations’), the attorneys are merely supposed to discuss the evidence that the judge has admitted during the trial, and how the law as provided by the judge to the jury may apply to that evidence. But sometimes prosecutors or defense attorneys engage in summation misconduct, where they go beyond the bounds of what is permitted. So the defense summation provides a key opportunity for defense counsel to engage in jury-duty interference, primarily by way of explicitly or implicitly encouraging jury nullification.
As I demonstrated under Heading II in my eleventh CCC newsletter edition (posted on May 19), jury nullification is not permitted in New York State. A defense attorney is not permitted to discuss the subject in summation, or to implicitly try to get one or more jurors to engage in that illegal practice.
Indeed, as I noted under Heading III in the eleventh edition, Justice Merchan is very aware of, and quite willing, to exercise his power to ensure that a defense attorney does not encourage any jurors to engage in that practice. In a fairly recent case, during the defendant’s testimony, he ruled that, unless certain evidence were presented by defense counsel, counsel could not adduce evidence, or make argument to the jury, regarding the defendant’s physical condition unless the defense could establish its relevance to the case. Justice Mercan explicitly stated that he was endeavoring to prevent the jurors from engaging in nullification by their deciding the case based on sympathy rather than on the question whether, based on the evidence admitted by the justice and the law as provided by the justice, the prosecution had proved its case beyond a reasonable doubt.
I have not seen the transcripts of the trial proper in Trump’s New York prosecution. Justice Merchan may well have ruled at various points that the defense may not adduce evidence and/or argue to the jury, concerning certain topics.
But I most certainly have seen Justice Merchan’s Decision and Order of March 18 granting the prosecution’s motions ‘in limine,’ in which Justice Merchan identified a number of subjects as to which the defense may not adduce evidence and/or make any argument to the jury. Those subjects generally involved potential attempts by defense counsel to have the jury consider issues that have nothing to do with the elements of the crimes with which Trump has been charged, but instead concerned legal defenses which defense counsel had proffered to the court and which Justice Merchan had easily rejected. Again, Justice Merchan’s concern here was to prevent the illegal exercise of jury nullificaton.
Nevertheless, Trump’s counsel during summation may improperly try to induce the jurors to engage in jury nullification.
4. By Spectators
a. Who Will Be Among the Spectators in the Courtroom Today?
It would hardly be surprising if, later today, there are an even greater number of Trump supporters in the courtroom than on any previous day, including those who feel privileged to behave as they want to and perhaps including some unsettling-looking individuals. (See Heading III.A.1.b.(1) above.) It would also not be surprising if some of them engaged in behavior which could affect the juror’s votes. (See Heading IV.A.4.b below.)
b. Who Will Be Among the Spectators in the Courtroom on Subsequent Days
It is less certain, except perhaps to insiders, who will be among the spectators in the courtroom on days subsequent to today. That is so for at least three reasons.
First, essentially no one other than the jurors will be able to decide when it will be that the attorneys and Trump, much less the jurors, will be called back into the courtroom after deliberations begin. The judge will call the attorneys and Trump back into the courtroom if or when, for example, the judge receives a note from the foreperson indicating that:
the jurors would like a readback of all or a particular portion of the testimony of one or more witnesses;
the jurors would like a readback of the judge’s final instructions on one or more subjects;
the jurors would like a clarification of one or more aspects of the judge’s final instructions;
the jurors have any additional questions;
the jurors have any additional concerns;
the jurors are unable to reach a unanimous verdict as to any of the counts in the indictment;
the jurors have been able to reach a unanimous verdict on some, but not all, of the counts of the indictment; and
the jurors have reached unanimous verdicts on all counts in the indictment.
Second, the judge has no duty to wait until anyone other than the defendant, the attorneys, and the court reporter (stenographer) are present before proceeding with the discussion with the attorneys of the substance of the jury’s note and what should be done about it, followed by the judge’s addressing the jury in the courtroom about the note.
Third, individuals who were willing to spend a morning, afternoon, or entire day in court watching and listening to witnesses testify may not be in a position to, or may not wish to, wait around all day and perhaps the evening in the vicinity of the courthouse on the off-chance that the jury will send a note, much less a note which would interest the individual in being present in court while the matter of the note is being dealt with.
On the basis of those three factors, and depending upon what system is used after today for determining who can enter the courtroom and when they may do so, it is entirely possible that at times when the jury is back in the courtroom because they have been summoned there by the judge in response to one of their notes, there will be a disproportionate percentage of Trump supporters in the courtroom--supporters who may be interested, not in listening to or observe the proceedings, but in trying to intimidate the jurors. And the greater the proportion of the spectators in the courtroom who are Trump supporters willing to engage in jury-duty interference, the greater the chances that one or more of those supporters will succeed in producing a hung jury.
Finally, it should be noted that there is another type of juror note which can be sent to the judge during the deliberations: a note sent by a single juror, or more than one juror, but not through the foreperson, because the juror(s) wish to communicate something privately to the judge without the other jurors knowing what the juror(s) want to talk to the judge about. In such a case, after consulting with the attorneys, the judge ordinarily will call the particular juror(s) into a private room, such as the judge’s office or robing room, and speak with the juror(s) with only counsel and the court reporter present. One example of such a note arises when one or more of the jurors believes that one or more of the other jurors is not behaving properly. (See also Heading IV.B.3 below.)
5. The Potential Mistrial Dilemma
This is a good time to remind the reader of the dilemma the trial judge can be faced with in deciding how to deal with an attempt by someone in the courtroom to engage in jury-duty interference. (See Heading II.E.2 in my eighth CCC newsletter edition (posted on May 19).) If the judge were to grant a mistrial, then:
there could be a very substantial delay before the case could be retried, especially if the defendant objected to the grant of the mistrial and then took an interlocutory appeal on the basis of that objection; and
if the highest appellate court to review the judge’s decision were to determine on an interlocutory appeal that there was no “manifest necessity” for the ordering of a mistrial, then Trump could not be retried for the conduct that was the subject of the trial.
On the other hand, if the judge does not grant a mistrial, and instead relies on the presumption that the jury will follow his instruction to ignore what the spectator(s) said or did in the courtroom, the judge runs the risk that the instruction will not unring the bell in the conscious or unconscious mind of at least one of the jurors, thereby potentially leading to a hung jury.
B. Out-of-Courtroom Jury-Duty Interference That May Still Come
1. By a Juror Attempting to Engage in Jury Nullification
Although we may never know of it, or may not know of it for a long time, one or more of the jurors may engage in jury nullification when voting in the jury room. Such a juror may have decided even before jury selection began that s/he would engage in nullification if selected to try the case. The jury may even have lied to, or intentionally misled, the judge and the prosecutors so as to be able to get on the jury and then engage in nullification.
Or a juror may have decided to engage in jury nullification based on one or more things that came to the juror’s attention after jury selection ended, such as statements properly or improperly made by someone in the courtroom, the jury room, or somewhere else in the courthouse, or based on information to which the juror was exposed outside of the courthouse during the course of the trial.
In any event, it must be remembered that it constitutes jury nullification--which is illegal in New York--whenever a juror casts a “not guilty” vote as to any count in the indictment as to which the juror, on the basis of the evidence admitted at trial by the judge and on the basis of the law as provided to the jury by the judge, believes that the prosecution has proved the defendant’s guilt beyond a reasonable doubt as to that count. (See Heading II in my seventh CCC newsletter edition (posted on April 15) and Heading II in my eleventh edition (posted on May 19).)
2. By a Juror Attempting to Cause One or More Other Jurors to Engage in Jury Nullification
A juror who enters the jury room at the beginning of deliberations intent on engaging in jury nullification may actually try to convince one or more of the other jurors to engage in it as well. Although a juror intending to engage in jury nullification on Trump’s behalf in the New York prosecution may feel that all Trump needs is one juror to hang the jury, another such juror may feel that it may nevertheless help Trump argue that the prosecution was a “witch hunt” if more than one juror votes to acquit. Also, a jury contemplating jury nullification may feel more comfortable following through with it if the juror is not alone in voting to acquit on the basis of nullification.
A more knowledgeable juror intending to nullify on Trump’s behalf may realize that the greater the number of jurors who vote to acquit, then (a) the more amenable will the judge be to declare a mistrial sooner rather than later, if at all; and (b) the lower the likelihood that the prosecution will decide to retry Trump in the New York case.
3. Potential Ways That an Attempt at Jury Nullification May Be Thwarted
Under Heading II.C above, I have already discussed mechanisms that a judge can, and in a case with a defendant like Trump, should and must do to try to prevent a juror from (a) intentionally giving false or misleading testimony during jury selection in order to get on the jury, and (b) engaging in jury selection if s/he does get on the jury, whether or not s/he lied or misled in order to get on it. I also indicated that Justice Merchan did not utilize any of those mechanisms.
However, there are also things that a judge can do upon learning during the trial that one or more of the jurors may be intending to engage in jury nullification.
A juror intending to engage in jury nullification sometimes gives this intention away to one or more of the other jurors, or at least gives a glimpse of that intention. As indicated under Heading IV.B.2 above, this can happen because the juror is trying to convince one or more jurors to join the juror in jury nullification. Or the juror may tip his or her hand by statements s/he makes to one or more of the other jurors, or by refusing to deliberate with the other jurors.
Virtually the only way the judge finds out about such events is through a note from one or more of the jurors explaining what is going on. Upon receiving such a note and then discussing the matter with the attorneys, the judge may interview the jurors who wrote the note, the juror who is the subject of the note, and perhaps other jurors.
This can be a very dicey situation, and, for two reasons, is especially dicey if the judge receives the note once deliberations have begun, First, if the judge ultimately decides that the juror needs to be replaced by an alternate juror, then deliberations must begin anew. Second, and more importantly, the judge will be very reluctant to ask the jurors about things that were said during deliberations, as jury deliberations are supposed to be almost completely inviolate.
The situation is also dicey because an appellate court might disagree with the judge’s decision. For example, in Trump’s case, if Justice Merchan were to replace the juror during deliberations, Trump would be highly like to object; and if the newly-constituted jury voted to convict Trump, Trump might have a good issue on appeal to get his conviction reversed. Such a reversal occurred in this federal criminal case.
On the other hand, if Justice Merchan were to decide not to replace the juror, then he might be running a significant risk that there will be a hung jury because the juror might in fact intend to engage in jury nullification.
If Justice Merchan were not to replace the juror, he nevertheless might be more apt to provide an ‘Allen charge,’ or provide one sooner than he might otherwise have done or provide one that is more severe than he otherwise might have done. Indeed, even if a judge has no reason to suspect that one or more of the jurors is contemplating the use of jury nullification, New York judges are permitted to employ an Allen charge before taking the final step of ordering a mistrial on the ground that the jury is hopelessly deadlocked.
The Allen charge is named after this 1896 U.S. Supreme Court decision. In that decision (at page 501), the High Court approved of a supplemental charge to a jury during deliberations which “in substance” said the following:
[I]n a large proportion of cases, absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.
You can see that, not only is this charge unbalanced in that it puts pressure on holdout jurors to change their vote, but it is dishonest. Neither the trial judge, nor the appellate judges, have any way of knowing that the jurors in the majority are “equally honest, equally intelligent with” the holdout juror(s). Indeed, even were jurors selected solely on the basis of their honesty and intelligence--which they are not--they would not all be “equally honest, equally intelligent.”
And some variations are even more unbalanced and otherwise potentially improper than the one of which the Supreme Court approved in Allen. Consider this one, which, according to Wikipedia, is the model Allen charge approved for use by the district courts in the United States Court of Appeals for the Fifth Circuit.
According to Wikipedia, “Allen charges have been rejected, in whole or in part, by at least twenty-three states. Twenty-two states have rejected the charge by judicial decision.”
However, New York is not on that list. The New York Court of Appeals--the highest appellate court in New York State--generally approves of the provision of an Allen charge when the jury reports that it is deadlocked, although that court is willing to reverse a conviction where the charge strays too far from the norm. (See this.)
I don’t know what sort of charge, if any, Justice Merchan gives when a jury announces that it is deadlocked. But if he does provide an Allen charge in such situations, it is possible, albeit unlikely, that a typical Allen charge alone will deter a juror from engaging in jury nullification in Trump’s case, especially if the juror was willing to lie and/or mislead his or her way onto the jury in order to hang the jury.2
V. What Happens If There Was Successful Jury-Duty Interference?
A. Jury Nullification
If Trump were to manage to obtain a hung jury in the New York criminal trial through jury nullification, then the prosecution could retry him on any counts as to which the jury hung. But that would not mean that the juror(s) who engaged in nullification would be off the hook.
Under Headings V.A, V.B, V.C ,and VI in my seventh CCC newsletter edition (posted on April 15), I indicated that I would discuss in later editions the accuracy of the claims one can find on the Internet that (1) a juror who engages in jury nullification cannot be punished for doing so and (2) even if such a punishment were a legal possibility, the authorities likely would have no way of knowing, much less proving, that the juror engaged in nullification. In the remainder of this Heading V.A, I will address those questions, as well as the question of when prosecutors should investigate a juror for suspected jury nullification and, if the investigation bears it out, prosecute the juror.
1. A Juror’s Intentional Deceptive Behavior to Try to Get on a Jury, As Well As a Juror’s Engaging in Jury Nullification, Constitute Criminal Behavior
In 1933, Justice Benjamin Cardozo wrote the unanimous opinion for the U.S. Supreme Court in Clark v. United States. According to Wikipedia, Justice “Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his philosophy and vivid prose style.”
In Clark, Justice Cardozo--demonstrating his flair for philosophy and writing--(a) held for the Court that a person who uses deception and concealment in order to get on a jury so that the person could engage in jury nullification to hang a jury in a criminal case is guilty of criminal contempt, and (b) further explained why such a person is also a prime candidate for prosecution for perjury and obstruction of justice.
Here, at length, are excerpts (from pages 467-68):
The petitioner, Genevieve A. Clark, has been adjudged guilty of a criminal contempt, in that with intent to obstruct justice she gave answers knowingly misleading and others knowingly false in response to questions affecting her qualifications as a juror.
. . .
There was concealment by the petitioner, and that willful and deliberate. She had been asked to state the kinds of work that she had been doing in other years. She counted off a few, and checked herself at the very point where the count, if completed, would be likely to bar her from the box. There is no room for the excuse of oversight or negligence. She had been warned that disclosure would lead to challenge and rejection. With her mind full of the warning she told the part truth that was useless, and held back the other part that had significance and value. Whether this was perjury or false swearing, there is no occasion to inquire. It was a deliberate endeavor to thwart the process of inquiry, and to turn a trial into a futile form.
Added to concealment there was positive misstatement. The petitioner stated to the court that her mind was free from bias. The evidence is persuasive that it was hostile to the government. Bias is to be gathered from the disingenuous concealment which kept her in the box. She was intruding into a relation for which she believed herself ineligible, and intruding with a motive. The only plausible explanation is a preconceived endeavor to uphold the cause of the defendants and save them from their doom. Bias, thus revealed at the beginning, is confirmed by everything that followed. While the trial was still in progress, she argued with her fellow jurors that Foshay was a hapless victim of circumstances too strong for him, and went outside the evidence, quoting statements in a newspaper to win them to her view. After the trial was over and deliberations had begun, she waived aside all argument and closed her ears to the debate. She had closed her mind to it before.
“An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is . . . the characteristic upon which the power to punish for contempt must rest.” The petitioner is not condemned for concealment, though concealment has been proved. She is not condemned for false swearing, though false swearing has been proved. She is condemned for that she made use of false swearing and concealment as the means whereby to accomplish her acceptance as a juror, and under cover of that relation to obstruct the course of justice. There is a distinction not to be ignored between deceit by a witness and deceit by a talesman. A talesman when accepted as a juror becomes a part or member of the court. The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. What was sought to be attained was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised as the complaisant juror, the effect would have been no different. The doom of mere sterility was on the trial from the beginning.
The books propound the question whether perjury is contempt, and answer it with nice distinctions. Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that inherent in the wrong of testifying falsely. For offenses of that order the remedy by indictment is appropriate and adequate. On the other hand, obstruction to judicial power will not lose the quality of contempt though one of its aggravations be the commission of perjury. We must give heed to all the circumstances, and of these not the least important is the relation to the court of the one charged as a contemnor. Deceit by an attorney may be punished as a contempt if the deceit is an abuse of the functions of his office,, and that apart from its punishable quality if it had been the act of some one else. A talesman, sworn as a juror, becomes, like an attorney, an officer of the court, and must submit to like restraints. The petitioner blurs the picture when she splits her misconduct into parts, as if each were a separate wrong to be separately punished. What is punished is misconceived unless conceived of as a unit; the abuse of an official relation by concealment and deceit. Some of her acts or none of them may be punishable as crimes. The result is all one as to her responsibility here and now. She has trifled with the court of which she was a part, and made its processes a mockery. This is contempt, whatever it may be besides.
(Citations omitted. Ellipsis in original.)
Of course, that the United States Supreme Court unanimously took the positions it did in Clark regarding the connection between jury nullification and the crimes of contempt, perjury, and obstruction of justice, does not necessarily mean that all state courts would take exactly the same views. I have not yet done sufficient legal research to provide an appropriate analysis on that subject.
2. If a Juror Engages in Such Criminal Conduct--Especially in the Trump Prosecutions--A Prosecutor Would Be at Least Reasonably Likely to Be Able to Discover and Prove It
In the Supreme Court’s Clark case, it was easy for the prosecution to discover and prove that Clark had engaged in criminal conduct in connection with her jury nullification. (See Heading V.A.1 above.) For Clark had provided the prosecution with all the proof it needed on the basis of statements she had made (a) to her sister upon Clark’s receipt of a summons to appear for jury duty; (b) to fellow prospective jurors; and (c) to fellow jurors during deliberations.
In the Trump prosecutions, it would probably be even easier for the prosecutors to discover and prove criminal behavior on the part of jurors who engaged in jury nullification.
In terms of discovery, a juror would become an instant celebrity in the eyes of almost half the adult population of this country were s/he to disclose that she was the juror, or among the jurors, who enabled Trump to obtain a hung jury. Even if the juror did not disclose his or her crimes to ‘Team Trump’ or to the news media, it would be extremely surprising if such a juror did not advise other people of what s/he had done, and eventually the juror’s crimes would be known by Team Trump and/or the news media, who would trumpet the news around the world.
Moreover, in New York at least, once a judge dismisses a jury, the jurors are legally permitted to discuss with anyone they want what happened in the jury room, including providing the identities of those who hung the jury. And both the news media and the prosecutors would have all sorts of means available to obtain evidence that a holdout juror suspected of having engaged in jury nullification had in fact engaged in it.
Indeed, the prosecutors would have tools that even the news media would not have: the tools that prosecutors use all the time, and have already used against Trump and his indicted and unindicted co-conspirators in the prosecutions against him and/or them. For example, prosecutors can, and do:
upon probable cause, secure search warrants to obtain and examine the cell phones, phone records, emails, texts, laptops, PCs, and social media posts and records of suspects and other persons;
interview, and even subpoena to testify under oath before a grand jury, any persons--including the relatives or friends of a suspect--who might be able to provide relevant information;
investigate and prosecute, or threaten to investigate or prosecute, persons who may have aided, abetted, solicited, or engaged in a conspiracy with, a suspect; and
obtain the cooperation of such aiders, abetters, solicitors, or co-conspirators against a suspect by promising not to prosecute them or by offering a plea bargain to them.
3. In Criminal Prosecutions Such as Those Against Trump, Prosecutors Should Investigate Suspected Cases of Jury Nullification and Prosecute Them When Supported by the Investigation
Although I have not closely examined the question, I presume that, while instances of jury nullification are hardly rare, investigations and prosecutions for jury nullification are indeed rare. The reasons for that presumed rarity--whether proper reasons or not--likely would include the following:
In many, if not most, criminal trials where one or more jurors have engaged in jury nullification, there is no reason for the prosecutor to suspect that jury nullification has occurred, so there is no reason to investigate if they have occurred.
Based on factors such as (a) the level of suspected jury nullification in the relevant jurisdiction, (b) the seriousness or significance of the case before the prosecutor, and (c) the level of personpower available, the prosecutor believes that the time of his or her office and that of the investigating agency (the police or the FBI) would be better served by investigating and prosecuting other crimes.
Unless the defendant was fully acquitted by the jury, the prosecutor can retry the defendant, and can take special precautions (see Headings II.A & II.C above) to decrease the likelihood that jury nullification will take place during the retrial.
As a general proposition, the prosecutor might not want to send a signal to the jury pool, the citizens, and the voters in the relevant jurisdiction that jury deliberations and votes can be investigated and even lead to criminal prosecutions; lest future potential jurors may be reluctant to serve as jurors or to vote properly if they are selected as jurors, lest the citizens may become less willing to cooperate with prosecutors and investigators, and lest the voters vote the District Attorney out of office.
While the prosecutor may have felt it appropriate to bring the prosecution in which jury nullification may have occurred, or may have brought that prosecution because of orders or pressure from his or her superiors, the prosecutor may feel some sympathy with certain views which might have led one or more of the jurors to engage in nullification.
On the other hand, there are reasons why, in certain situations, it would clearly be a dereliction of duty for a prosecutor not to investigate and, if the investigation warranted it, not to prosecute suspected instances of jury nullification. The existence of such reasons in the context of the Trump prosecutions are overwhelming--albeit less so in the New York case than in, say, the D.C. federal case--and would include the following:
Both inside and outside of courtrooms, the defendant himself has repeatedly encouraged jury nullification, both in the case at hand and in his other pending criminal cases. (See, e.g., Headings III.A.1.a & III.A.2.a above.)
Over the past decade, and right up to the present, the defendant has repeatedly advocated the violation of criminal and other laws by himself and others and has displayed utter contempt for the rule of law and the American justice system.
Almost half of the adult population in the country appears to share the views mentioned in the immediately-preceding bullet point.
Largely as a result of the matters described in the three above bullet points, a majority of Americans now appear to have little faith that the American criminal justice system is able to deal with the criminal activity of the defendant and his supporters.
The defendant and almost half of the adult American population is awarding celebrity status to the juror(s) who engaged in jury nullification on his behalf, and the juror(s) are basking in, and economically profiting from, that celebrity. (See, e.g., Heading V.A.2 above.)
One can readily locate on the Internet websites, webpages, social-media posts, and the like (see Headings V.A, V.C, and V.D in my seventh CCC newsletter edition (posted on April15)) which:
contend that jury nullification is not illegal, and in any event will not be discovered or cannot be punished;
encourage citizens to use deception to get on juries so that they can engage in jury nullification generally or in particular types of cases, including those in which the particular defendant has been indicted; and/or
offer advice as to how citizens can successfully pull that off.
In light of all of the six bullet points and three sub-bullet points immediately above, without appropriate investigation and prosecution of jury nullification in a case in which Trump (and/or his indicted or unindicted co-conspirators) is a defendant, the extent of the use of jury nullification is very likely to expand and expand, not only in those cases and in their relevant jurisdictions, but throughout the criminal justice systems in this country, ultimately resulting in the commission of vastly more crimes--especially democracy-destroying crimes--and even resulting in anarchy and civil war.
B. Juror Intimidation or Bribery
I will presume here that Trump, by hook or by crook, will not manage to have all twelve jurors acquit him on all of the felony charges contained in the indictment. Thus, I will not address the question whether the constitutional Double Jeopardy Clause would bar the retrial of Trump if he were to have obtained such an acquittal in part by the use of jury tampering, whether via intimidation and/or bribery.
On the other hand, if Trump were to obtain a hung jury by the use of jury tampering, there would be no Double Jeopardy issue. The existence of a hung jury would mean that the judge had determined that there was “manifest necessity” to order a mistrial, and thus Trump could constitutionally be retried. (See Heading II.E.2 in my eighth CCC newsletter edition (posted on April 23).) Indeed, in such circumstances, Trump very likely would have requested, or acquiesced in, the grant of a mistrial, and thus he would be in no position to claim on an appeal that there was no “manifest necessity” to order a mistrial and thus that Double Jeopardy applied.3
Nevertheless, Trump could be investigated, and, if appropriate, prosecuted if there were reason to suspect that he personally, or through others, engaged in jury tampering. So could anyone who aided or abetted Trump’s doing so, or were part of a conspiracy to do so.
Be seeing you,
Brian
In future CCC newsletter editions, I will examine matters such as: (a) the likelihood that the D.C. trial will begin before Election Day; (b) the likelihood that that trial will end before the election; (c) the likelihood that Trump would be convicted in that trial; (d) the likely presumptive sentencing range Trump would face upon being so convicted; and (e) the likelihood that, upon conviction, Trump would receive bail pending sentence and bail pending appeal.
One of the sub-bullet points under Heading II.F.2 in my eighth CCC newsletter edition (posted on April 23) recommended that prior to the opening statements of counsel, the judge should instruct the selected jurors that during deliberations, “they may, and must, discuss the case with each other in order to try to reach a unanimous verdict if possible.” In retrospect, although the New York courts and apparently most of the courts in this country would have no problem with that instruction, whether delivered at the beginning or the end of the case, I do not approve of it. A juror’s duty and goal are to vote as s/he deems correct based on the evidence and the law; to try to convince the other jurors that his or her views are correct; and to have an open mind when other jurors try to convince the juror that their views are correct. A jury’s duty and goal are not “to reach a unanimous verdict.”
Of course, whenever a judge declares a mistrial over the objection of the defendant, there is a theoretical Double Jeopardy issue. But appellate judges give trial judges great leeway in determining whether it would be fruitless to have the jury continue to deliberate after the jury announces that it is deadlocked. And it is extremely unlikely that Justice Merchan will declare a mistrial on the basis of the jury’s having indicated that it is deadlocked without giving the jurors adequate opportunity to break the deadlock.