Could a stealth juror derail Trump’s hush money trial?

Testimony in former president Donald Trump’s hush money trial wrapped up on May 21 and the trial is headed to closing arguments on May 28.

In the end, Mr Trump chose not to take the stand. A verdict could come as soon as May 29.

Ahead of testimony from 22 witnesses, a full jury was sworn in to hear evidence and decide the guilt or innocence of Mr Trump. Twelve jurors and six alternates were seated following a jury selection process that lasted a week.

Mr Trump faces 34 counts of falsifying business records after he allegedly instructed then-fixer/now-witness for the prosecution Michael Cohen to pay off adult film star Stormy Daniels in the lead-up to the 2016 election to remain quiet about her claim that she had sex with Mr Trump in 2006. The former president denies the affair.

During jury selection, a top priority for both sides was to root out potential “stealth jurors” – those who claim to be impartial but who hide their biases to get on a jury and possibly derail a trial.

Jurors are supposed to be impartial. A number of prospective candidates were dismissed from proceedings simply because they felt they could not be neutral while sitting in judgment of Mr Trump.

Steve Duffy, from Trial Behavior Consulting, told The Independent that stealth jurors “fully have an opinion … but [are] trying to get on the jury”.

“I have no doubt that there are jurors in the pool on both sides, who really want to be on the jury [but] have a very strong opinion, either for or against him, and are deliberately not saying anything to try to get on,” Mr Duffy said, during the jury selection process. “The way you figure out who those people are is with background research, which … both sides are undoubtedly doing.”

Manhattan prosecutors posed several questions to jurors in the trial’s first week. Among them - Can they follow the facts and the evidence and the judge’s instructions, and can they remain fair and impartial, despite knowing the man sitting at the defense table in front of them is “a former president and a current candidate for that office”?

“We don’t expect you to be living under a rock for the last eight years, or the last 30 years,” Assistant District Attorney Joshua Steinglass told a group on 16 April.

But focus on the evidence, he told them.

Mr Trump’s attorneys largely had only one question: what do you think of him?

“It’s important to President Trump that he gets a fair shake,” lead defense attorney, Todd Blanche, told potential jurors.

“It’s easy to read something off a sheet of paper and say, ‘Yes, I’m going to be fair and impartial. What I want to do is test that a little bit,” he said. “We all know that every one of you knows President Trump, and you all know him in different ways, and you all have different views of him.”

Nothing was off limits and there were no wrong answers, he said, and nothing would “offend” him.

But rather than face a disgusted panel of New Yorkers, Mr Blanche instead received promise after promise to treat Mr Trump as any other criminal defendant and to separate whatever they might feel about him personally from the case in front of them.

Mr Duffy told The Independent that a possible stealth juror would not be “volunteering information, or honestly answering because they want to be on the jury” to either convict or prevent a conviction.

The prosecution looked to remove any Trump supporters, and the defense tried to get rid of anyone who may be left-leaning, which was difficult considering that President Joe Biden got 84.5 percent of the vote in Manhattan in 2020. 

“The parties do background research on jurors. That means looking at people’s social media, and you can also look at any publicly available information, it’s fair game,” Mr Duffy said. “Everybody involved in any sort of legal proceeding does it with jurors ... because if you don’t, you’re putting yourself in a huge competitive disadvantage. So they will know who’s Democrat, who’s Republican, if people have made really strong statements on social media.”

Apart from social media posts, attorneys on both sides also look at criminal convictions and publicly available information on political donations of potential jurors.

“The faster the jury selection process works the harder it is to do that comprehensively,” Mr Duffy said. “I’ve had jury selection take 30 minutes in federal court from start to finish – we basically knew nothing about the people … You could never do that in a case like this.”

While Mr Duffy said removing possible stealth jurors was a big focus for both sides, it was particularly important for the prosecution as a unanimous verdict is needed to avoid a mistrial. The Trump team needs only a single juror who refuses to convict.

“If you get one person who just says ‘I don’t care … I will never vote to convict’, then you’re going to get a mistrial,” he said. “So rooting out … what I would call a stealth juror, either for or against Trump is certainly a huge priority for both sides.”

He added: “In Trump’s world, if he gets one of those people on the jury who just no matter what, will not vote to convict, then that’s great because you won’t get convicted. So rooting out anyone like that is imperative for the prosecution.”

New York as a trial venue is tougher on Mr Trump when it comes to the jury pool compared to the area of South Florida where his classified documents case is being handled, “because, in Manhattan, Trump’s supporters stick out like a sore thumb,” he said.

“The prosecution certainly has [fewer] problems than Trump does,” Mr Duffy noted during the jury selection process, but he added that Mr Trump “doesn’t need to get acquitted”. He just needs a mistrial.

“Delay is often the defendant’s best friend,” he added. “The percentage of jurors who are outwardly pro-Trump is going to be very low. But he only needs one.”

Mr Duffy said that it’s clear that the attorneys in Mr Trump’s trial did their “due diligence” on the jurors.

“You see both sides directly ask jurors questions about their social media content. That’s unusual, to directly confront jurors with that, but it’s just a product of Donald Trump being such a ubiquitous presence in the public eye,” he said.

“For sure,” Mr Duffy said when asked if a stealth juror may be able to derail the trial. “One of the jurors who was dismissed ... the prosecution was insinuating [that he] could be that kind of juror.”

The prospective juror failed to disclose that he had torn down political signs and that his wife had been party to criminal corruption proceedings, the consultant noted.

“Any non-disclosure like that is going to be a red flag to an attorney,” he added. “The more off the grid you are, the easier it is to fly under the radar.”

However, the issue of stealth jurors “cuts both ways”. There are people who may try to get on the jury and are “hell-bent” on convicting and there are those who’ll refuse to convict regardless of what the trial may unearth, Mr Duffy said.

People seeking “celebrity” may “overlap” with those looking to get on a jury to affect the outcome. “Especially nowadays, certainly there are people who might want to do that because it’s exciting to them or almost titillating to them to be involved,” he added.

But the opposite issue exists as well.

“One of the jurors who was dismissed ... was someone who’s terrified of being involved in this because they’re afraid for their own safety,” Mr Duffy said.