The Jury Has The Case

Could a lone holdout hang the jury and cause a mistrial? I discuss some theories, some numbers, and my own experience on a criminal jury

Courtroom sketch of Trump facing jurors in his criminal trial in Manhattan

Closing arguments in Trump’s Manhattan criminal trial concluded late Tuesday night. This morning, Judge Juan Merchan gave his final instructions, and as of this writing, the jury has the case.

What happens next, no one knows for sure.

There were very few surprises in yesterday’s closing arguments, though both sides went on too long. While the defense generally was low energy and monotone, the more experienced prosecution presented a detailed and organized summary. There was even a brilliant recreation by the prosecutor, Joshua Steinglass, of the fateful call Michael Cohen claims to have made to Trump that lasted just around a minute and a half. Stein showed in real time and with real words how the conversation could take less than 50 seconds.

Now, all eyes turn toward the jury of 12 New Yorkers. And everyone has the same question: Will they arrive at a unanimous guilty verdict, or will there be a holdout that causes a hung jury?

In today’s discussion, I want to emphasize that speculation about this juror or that juror is a rather pointless exercise. I’ll address the two main “holdout juror” theories I’ve seen floating around and why there’s no sense fretting about either.

I’ll return instead to some basics about juries and why hung jurors are the small exception, not the norm. And as an example of how things could go, I’ll tell the story of my own experience on a criminal jury back in California in the early 1990s and how initial holdouts failed to prevent a verdict.

The rogue juror

When the jury was first empaneled, a rumor went around that one of the jurors (apparently Juror #2) was a MAGA holdout in the making because of the news sources the juror cited. The New York Times created even more handwringing around this by publishing a chart of where the jurors get their news sources, and everyone zeroed in on Juror #2:

This notion was amplified by right-wing voices.

But this chart was misleading, and the claim was overblown and distorted, once you read the actual voir dire transcript. In response to questions, the juror had stated, “I read basically everything. I am on Twitter. I follow Truth Social posts from Trump on Twitter. I do follow Michael Cohen, Mueller She Wrote, and a few others.” As legal analyst Ron Filipkowski noted drily, “That also describes me. So I wouldn’t get too excited.” (Note that this news diet also describes me.) 

A second claim, pushed by some MAGA folks, is that there is one juror who is unlike the others, who file past Trump as they enter the room and don’t ever make eye contact with him. This juror, according to sources who spoke with Marc Caputo of The Bulwark, has made friendly eye contact with Trump. Further,

this juror has appeared to nod along in seeming accordance with the defense at times. On other occasions, the juror has seemingly reacted favorably to and made eye contact with Trump’s congressional surrogates who began joining him in court in recent weeks.

But on the other hand, and in the very next part, Caputo writes,

A juror or jurors making friendly eye contact might simply be displaying good manners in court irrespective of how they are seriously weighing the evidence and considering their verdict.

“You just never know what people are thinking or what they’re gonna do,” said one Trump insider. “Yeah, the [juror ]looks friendly. But maybe [the juror is] just doing that to fuck with us before they vote to convict.”

That also sounds like a highly plausible New Yorker thing to do. And even if someone truly is a conservative, and therefore tends to light up around GOP celebrity, that still doesn’t mean the juror will ignore the law and vote to acquit in the face of overwhelming evidence. Some of the sweetest, smiling people will also shrug and say, “This pains me to do, but the law is the law.” Indeed, many traditional conservatives tend to come to this point rather quickly in a jury room.

Rather than speculate about what a juror might be thinking, which is about as accurate as polling these days, better to look at how juries traditionally act.

Hung juries are rare

Prosecutors with decades of experience will tell you, juries generally take their jobs very seriously. A rogue juror unwilling to follow the law and assess the evidence without bias happens but is rare.

That’s why, according to legal expert Norm Eisen, hung juries are uncommon, just around 1 in every 20. But wait, couldn’t this one be the exception? Of course that’s possible, and we should be clear-eyed that if there’s any trial where a stealth MAGA supporter would love to get on the jury, it’s this one.

But getting on this jury with a history of Trump love would have been hard. The prosecutors asked a lot of questions and checked political histories and public statements carefully, such as jurors’ social media accounts. Now, I’m not friends with many MAGA types, but I do know from experience that they tend to be very public in their support for Trump. That support is rarely fully hidden from the public, even apparently if you’re a sitting Supreme Court Justice with a penchant for insurrectionist flags. 

They just can’t help themselves. Public fealty to Trump is part of their identity.

That’s why I think the chance of there being a MAGA Trumper on the jury without the prosecution knowing is small. That said, there very possibly is a Trump voter or a low-key MAGA type on the panel, but that still doesn’t mean the juror won’t go along with the others.

That was the case with one juror in the E. Jean Carroll sexual assault and defamation case. There, Carroll’s lawyers had sought unsuccessfully to exclude a 31-year old male juror who stated he listened to radical YouTuber Tim Pool—an influencer who espouses misogyny, conspiracies and hate. That juror remained on the panel, much to the consternation of Carroll’s lawyers. But in the end, despite his disturbing choice in podcasts, he voted with the other eight jurors to render a unanimous verdict against Trump, finding he committed sexual assault and defamation and awarding the first $5 million in damages.

Why would a right-leaning juror do this? One reason is peer dynamics. Once jurors go into deliberations, any holdouts will feel enormous pressure from the other jurors to vote with them. They will discuss evidence, and minds typically will change, especially after fatigue and frustration set in. After all, no one gets to go home if the jury doesn’t reach a verdict, and the quicker they reach it, the sooner they can get back to their lives.

The fact that there are two attorneys on the Trump panel will likely mean the discussion gets held more strictly to the elements and what the jury instructions specifically say and what evidence was deemed admissible by the judge. That, in my mind, would tend to streamline and clarify any jury deliberations.

I was a jury foreperson once

When I was in my first year of law school, I was picked for a jury. The defendant was accused of handing out new, free needles to heroin addicts in public, in violation of municipal ordinances. His defense was one of necessity, because the city was not doing anything to stop the spread of AIDS among intravenous drug users, and free needles literally could save lives.

I was the last juror called to sit. I was sure someone would boot me because I was a law student, but that didn’t happen. My sense was that the young DA was hoping that I would be more conservative because I was an Asian male law student who understood things like “strict liability.” 

The prosecution’s case was only half a day long. Police officers testified that they’d seen the defendant handing out needles in public. But the defense was like a two week class about drug addiction, the danger of AIDS and how it spreads, and what volunteers were trying to do in the face of little public health services support. 

When we got the case and went back to the jury room, the jurors quickly suggested that I be the foreperson, since I was in law school. It was a somewhat silly assumption that I would know any better than the others about the law after just a few months of study, but they insisted, and I accepted.

The jurors were in agreement that the state had proved the defendant had broken the law as written. The only question was whether he had met his burden to show he acted out of necessity. There were five elements to his defense, and I put them up on a poster board. Everyone agreed he had met three of them, which left two to discuss.

At this point we took a poll, and nine jurors, including me, were in favor of acquittal, while three favored guilt. After we had a discussion around the remaining two elements of the defense, the vote changed to 11 to 1. The holdout was an older white male, and he was focused on what it would do to property values should the defendant be acquitted. 

That of course wasn’t something we should have been worried about. Some of the jurors seemed miffed that he brought it up. We stretched past lunch, and he seemed to dig in. On the next break, however, I chatted with him not about the case at all, but about the San Francisco Giants and the season they were having—which was about all the baseball I knew at the time, gleaned from conversations my straight law school roommates had held in my presence. 

I made a comment about how hard it must be to be an umpire, having to make tough calls, even if they prefer one team or player, because the rules are the rules. I said that mostly to let him know that I understood he was in a tough spot, backed into a corner a bit. When the break ended, he suggested we go take another vote. I understood what he was signaling, so I agreed. 

This time, it was unanimous. An older Black woman smiled and mouthed “Thank you” to me, and I’ll never forget the feeling of having come to a unanimous decision after all.

I tell my own experience here not to suggest anything inside that jury room in downtown Manhattan will be similar. But human nature is what it is, and if there is a holdout, a lot of the same dynamics may play out. 

The jury feels like a small community after weeks of a trial. You’ve sat next to the same people, had lunch together, and pointedly not talked about the one thing you’ve all been witnessing all this time. So when you finally get to talk about it, you find there usually is a bit of group dynamic at work, and there will be leaders and factions. Who the jury foreperson is matters when it comes to the shape of discussion and the tone and level of respect in the room.

From all accounts, the Trump jury takes its job seriously—taking notes and staying awake and attentive, even when the defendant is snoozing disrespectfully. No one can predict with 100 percent certainty how this will go, but the prosecution’s case is solid, the defense was tepid and disorganized, and the evidence is there for a conviction beyond a reasonable doubt. That’s about all we can ask for.

Now it’s up to 12 ordinary people who have given up seven weeks of their lives to sit in judgment of an ex-president, a historic first with the world’s eyes upon them. We wish them well in their deliberations. May they be relatively short and decisive.