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It Isn’t Easy to Hang a Jury

In the short time it took the jury to convict Donald Trump — ten or so hours — there was ample time, between Ozempic commercials, for cable TV’s legal pundits to speculate on the harrowing possibility of a hung jury. Surely, the thinking went, there would be a plant on the jury who would insist on acquittal, force a mistrial, and Trump would skate yet again.

It didn’t happen, not this time. But as we look forward to a long trail of trials over the next several years, the subject will surely come up again.

I’m here to tell you it’s not likely. Deadlocked juries are rare — roughly six percent of trials — and most of those are the result of poorly prepared cases. Even if a diehard Trump fan were to get on the jury, the chances of that person deadlocking it — or even wanting to — are not high.

I had the chance to hang a jury once, and it created an ethical dilemma that I might have failed — or not.

It isn’t often one is thrown into a room with eleven total strangers and ordered to get something done. Most people don’t spend a lot of time in meetings, and the need to seek a consensus, let alone a unanimous one, doesn’t come up that often.

A big-city jury is a true melting pot. All twelve jurors are picked at random, part of a jury pool that might number in the hundreds. All races, genders, religions, ages, and income levels are summoned to the courtroom, all of us sitting for hours on the same hard wooden benches, a palpable reminder that we’re all equal before the law.

After much waiting, we might be assigned to a trial, which means we’ll be interviewed by the prosecutor and the defense attorney, who will haggle over our suitability. Most likely, we’ll be rejected by one or the other.

Unless you’re me. When I serve, I usually end up on a jury. I don’t know why.

The trial in question was in the very same Bronx courthouse immortalized in Tom Wolfe’s Bonfire of the Vanities (brilliant novel, lousy movie), and it was a singularly ugly experience.

The defendant was a guy in his twenties on trial for selling cocaine, who’d been arrested in what I now know was a routine buy-and-bust operation, where undercover cops do the buying, and uniform cops do the busting.

Much of the juror experience is about leaving your cynicism at the door. From the minute you enter the courthouse, the gravity of the legal system takes over. Once you’re in this rules-based environment, your life is about rules-based arguments, through which weighty matters are decided. Preconceived notions tend to vanish, replaced by the logic and dispassion of the law.

So even had I believed that cocaine should be legal, and that selling it to children was a public service, all I was permitted to think about was the law, and whether that law had been broken. It was my civic responsibility to think this way, and — like almost everyone I encountered, every time I served — I took it seriously.

The trial itself was straightforward. The undercover cops testified about the buy, the uniform cops about the bust, and after two days we were sent to the jury room to deliberate. That’s when it got weird.

We convicted the guy on the first count right away, first time we took a vote. Selling cocaine. No muss, no fuss. Guilty.

So naturally, the second count — intent to sell cocaine — should be a no-brainer, right?

To this day, I’ve wondered how anyone could sell something without intending to sell it, but that’s what eleven of my fellow jurors decided. I’m not sure they believed it, and I did try to persuade them otherwise, but my logic wasn’t welcome. They hated me.

Which was painful, and I’ve since puzzled over what was going on. Did I miss something? Was I naïve about the testimony? What had my fellow jurors — a fair cross-section of Bronx society — been thinking?

For some, it might have been about getting time off from work, and the more time off the better. The speed with which we dispatched the first count may have upset their plans for milking this rare chance to goof off on a weekday.

For some, it might have been just the opposite. They were antsy to get this over with and get back to work, and they’d take the path of least resistance to do that.

For some, it might have been distrust of the police. The cops on the stand seemed credible to me, but I could see how they might not be, how they might be adept at testifying and practiced at lying. I could also see how a juror who had grown up in certain sections of the Bronx might view the police with suspicion, if not outright hostility.

I also think that, having already convicted this guy on one count, there may have been a sense that a second count would be piling on. Which I could understand.

But whatever the reasons, we were deadlocked, 11-1. I was 99 percent sure the guy was guilty, and I couldn’t, in good conscience, vote that he wasn’t.

If I’d been more stubborn, if I’d dug in my heels and insisted, I could’ve trapped us all in that unpleasant room for an unknown number of days, forcing a mistrial. But frustrations would’ve grown. Tempers would’ve flared. The constant hostility from people intent on changing my mind — and impatient with my unwillingness to change it — would’ve grown unbearable.

So I caved. I changed my vote to not guilty. I confirmed that the guy never intended to sell that cocaine he sold.

I’ve never felt good about it, but it could have been worse. I could have been defending someone’s innocence, as opposed to their guilt, and that would’ve been another kind of torture entirely.

So juries do not hang easily. Planting someone on a jury is notoriously hard to do, and organized crime has tried to crack that code for centuries. A jury summons to a Manhattan court is the very definition of a random event. The entire jury selection process starts out random and gets ever more subjective as the two sides whittle down the possibles. The odds are too long to be worth the trouble.

That leaves a lone actor, a Trump fan who seizes an opportunity she had no reason to expect. Against all odds, she’s gotten onto the jury of a Trump trial, and she’s determined to find a way to get Trump acquitted.

But as I’ve just proposed, the psychological odds are as prohibitive as the mathematical ones. As unlikely as her being seated is, it is equally unlikely that she could withstand the onslaught of damning evidence — five weeks’ worth, and not be convinced of this guy’s guilt. And even if she could maintain her stubbornness during deliberations, there would be eleven other people bearing down on her, relentlessly.

Drawing on my own experience, but also on things I’ve read, it's hard to imagine a randomly-selected juror who can withstand that sort of pressure.

All of which is my rather long-winded way of saying that when it comes to Trump’s criminal trials, we have many things to worry about. But I’m quite sure we can take ‘hung jury’ off the list.

 


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