Could a stealth juror derail Trump’s trial?

Donald Trump rails against charges as he leaves court on 21 May   (2024 Getty Images)
Donald Trump rails against charges as he leaves court on 21 May (2024 Getty Images)

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

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

Ahead of testimony from the 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 in the case after he allegedly instructed his then-fixer, now-witness for the prosecution Michael Cohen to pay off adult actor Stormy Daniels in the lead-up to the 2016 election to remain quiet about her claim that she had an affair with Mr Trump in 2006, which the former president denies.

During jury selection, one of the top priorities for both sides in former President Donald Trump’s hush money trial 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 jurors were dismissed from the proceedings simply because they felt they could not be neutral while sitting in judgment of the former president.

‘No doubt’ possible stealth jurors exist on ‘both sides’

Steve Duffy, from Trial Behavior Consulting, told The Independent before the legal wrangling began 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 argued 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 first week of the trial. 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 of potential jurors on 16 April.

But focus on the evidence, he told them.

Mr Trump’s attorneys, however, 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 jurors last month.

“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.

‘They’re going to have an opinion one way or the other’

But rather than face a disgusted panel of New York City residents, 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.

“People know who he is,” Mr Steinglass said during a pretrial hearing on 15 February. “They’re going to have an opinion one way or the other. They can like him or dislike him. They can still be fair jurors so long as that is not going to affect their abilities to fairly judge the evidence.”

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 was looking 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. So, generally, 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. “And, frankly, everybody involved in any sort of legal proceeding does it with jurors these days, 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 of a case also look at criminal convictions and publicly available information on political donations.

“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.”

Trump only needs one supportive juror for mistrial

While Mr Duffy said removing possible stealth jurors was a big focus for both the defense and the prosecution, it was particularly important for the prosecution as a unanimous verdict is needed to avoid a mistrial. All the Trump team needs is 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.”

“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,” he added.

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,” Mr Duffy added at the time.

“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,” Mr Duffy said. “The percentage of jurors who are outwardly pro-Trump is going to be very low. But he only needs one.”

One day after seven jurors were sworn in, Fox News personality Jesse Watters broadcast identifying details about one of the seated jurors, Juror No 2.

He claimed without evidence that “undercover liberal activists” were trying to get on the jury. Mr Trump then quoted Mr Watters’ statement on Truth Social, raising baseless speculation that Manhattan residents called to jury duty are lying to the judge, prosecutors, and defense attorneys so they can be seated in the case – elevating his bogus conspiracy theory that the cases are “rigged” against him.

The next morning, Juror No 2 returned to court to tell the judge that aspects of her identity across the media prompted friends, colleagues, and family members to question her about her role.

“I don’t believe at this point I can be fair and unbiased and not let outside influences … in the courtroom,” she said.

Moments later, Manhattan prosecutors alerted the judge to Mr Trump’s “disturbing” Truth Social post quoting Mr Watters, which appeared on the former president’s social media platform just one day after the judge warned him against intimidating jurors.

“It’s ridiculous, and it has to stop,” Assistant District Attorney Christopher Conroy told the judge at the time.

Could a stealth juror derail Trump’s trial?

Mr Duffy told The Independent 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 added.

“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.”

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

People seeking “celebrity” may “overlap” with those looking to get on a jury to affect the outcome, he added. “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.”

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 last month.