Who will hang next week, Trump or the jury?
Next week, in a Manhattan courtroom, citizen Donald Trump will arrive at the day of reckoning.
Trump has until now led a charmed legal life. A combination of a pallid Department of Justice, a corrupt and incompetent judge in Florida, and a partisan Supreme Court have allowed him to escape accountability for his Jan. 6 assault on democracy. Compared to the enormity of Trump’s crimes, the peccadillo of a secret payoff to a porn actress seems like small potatoes.
Everyone is asking me these days whether the trial will end in a hung jury. Surely, they say, there will be at least one Trumpster on the jury who will hold out for acquittal. I think this is pure fantasy.
In my experience, hung juries are a rarity, particularly where, as here, the proof is strong and the law is straightforward. The seasoned prosecutor Elie Honig estimates that the number of hung juries ranges from five to ten percent. Others might give a smaller number.
I don’t think there will be a hung jury here. The evidence against Trump is so overwhelming that my bet is on a unanimous verdict of conviction.
Of course, the prosecutor has an advantage out of the starting gate. The institutional pressures favor him. “Why would we be here,” the jurors wonder to themselves, “if the evidence didn’t warrant a conviction?”
Trump failed to take the stand. The jurors are not supposed to draw any inference of guilt from this, but everyone knows they do. If the key issue in the case is whether Michael Cohen lied in testifying that Trump authorized the payoff to Stormy Daniels to buy her silence in the run-up to the 2016 election, why didn’t Trump deny his involvement? He knows how to deny things. He has been doing it all his professional life.
Also, the jury pool has a built-in bias against Trump. He got a paltry 12.3 percent of the vote in Manhattan in the 2020 presidential race — so, to extrapolate, 87.7 percent of the pool disfavors him, politically. (And don’t think this doesn’t matter). The jurors told the court they would be fair and impartial, and only be guided by the evidence as it came from the witness stand, and the law as explained to them by the judge — but every trial lawyer knows it is not true.
Michael Cohen is a confessed serial liar. He lied to Congress, to the IRS, to the Wall Street Journal and to a federal judge. He is also a thief, admitting he stole $60,000 from Trump in the very transaction where he was “reimbursed” for the payoff to Stormy Daniels. But, having a key witness who is a liar and a thief has never stopped prosecutors from making a case, or jurors from convicting, if the proof is there.
Cohen also admitted his bias against Trump. He feels that Trump betrayed him; he wound up in jail. He admitted that he had a financial stake in Trump being convicted, but added he had a financial stake in Trump being acquitted as well. A fraudster profits from all angles and all scenarios.
But, after all, who is likely to know the inner workings of a crooked deal? The Archbishop of Canterbury? Or is it someone on the inside who knows the inner workings of the criminal enterprise? As the columnist David Frum observed on CNN the other day: “The Trump defense is that everyone in the Trump Organization was a criminal and a liar and a crook, except for the boss, who was not.”
Then there is the documentary evidence that corroborates Cohen’s testimony, the nine checks Trump signed and the related phony invoices falsely stating that the payments were “for legal services.”
Cohen, although a lawyer, rendered no legal services. He functioned as an arranger, a fixer, an enforcer who would bury unfavorable stories about Trump to save his candidacy. And, there is the damning evidence that Trump admitted that he reimbursed Cohen, and authorized a “private contract” with Stormy that he claimed was “very common among celebrities and people of wealth.”
The verdict in a criminal case must be unanimous, but in this case there is a nuance. What makes the falsification of business records a felony was that the intent of the falsification was to conceal the commission of another crime. There are three other crimes alleged in the indictment: tax fraud, election fraud and a federal campaign finance violation.
The jury may be asked to deliver special verdicts, that is, answer the question as to which crime Trump intended to commit and record the vote. The judge indicated in the charging conference that the jury need not have unanimity on which crime Trump intended to commit, so long as they unanimously agree that the intent was to commit some crime.
When juries indicate that they are deadlocked, the judge may press for a verdict by giving them the Allen charge (also known was the “dynamite charge”) following the 1896 Supreme Court case Allen v. United States.
The Allen charge is essentially that the minority should give way to the judgment of the majority or at least reconsider their tentative judgment. Courts can tell jurors when they say they are deadlocked : “It is desirable if a verdict can be reached,” but this is true only if the verdict “reflects the conscientious judgment of each juror and under no circumstance must any juror yield his conscientious judgment.”
Nevertheless, many defense lawyers think the Allen charge is coercive, particularly if the majority are for conviction. It is an instruction, however, that has withstood the test of time.
In the film “Twelve Angry Men,” the juror played by Henry Fonda was such a strong holdout for acquittal that he persuaded the others to go his way. In my experience, this happens only in the movies. I don’t see a hung jury in People v. Donald J. Trump.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.