Is This Legal Strategy Trump’s Last Hope in Hush-Money Case?

Photo Illustration by Thomas Levinson/The Daily Beast/Getty
Photo Illustration by Thomas Levinson/The Daily Beast/Getty

As his criminal trial gets underway with opening statements and the presentation of the first prosecution witness, defendant Donald Trump’s defense lawyers signaled a “throw everything against the wall and see what sticks” strategy that may reflect a desperate attempt to find something–anything–that may appeal to a lone holdout juror.

Indeed, the phrase “you only need one”–or some variation of that–seems to have become mantra among reporters and legal commentators covering the trial. But the scenario of a lone holdout juror causing a “hung jury” and ensuing mistrial is neither the panacea Trump may believe it to be nor as grave a danger that those hoping for a Trump conviction fear it to be.

Classically strong defense opening statements usually vary between a near silent approach–sometimes defense counsel even reserve openings until later in the trial if the rules allow for it–in which the defense lawyer simply reminds the jury of the fact that the prosecution has the extremely high burden of proof and to scrutinize the evidence and witnesses carefully and an approach that lays out the theory of defense.

The latter is particularly useful because it gives the jury a prism through which to view the onslaught of evidence the prosecution will soon present. Trump lawyer Todd Blanche, however, chose neither of these approaches.

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Among the myriad of defense points made in opening statements, Blanche told the jury that they would see that Trump is not just a former president, but “[h]e is also a man, he’s a husband, he’s a father. And just like me.” Now, holding aside the criticism that Trump doesn’t seem anything like his lawyer in appearance, temperament, wealth or reputation, this is the classic attempt to “humanize” a criminal defendant so that the jury does not objectify them as a purely criminal being.

This strategy is often aided by having the defendant dress down in a style more relatable to the jury and seating the defendant’s family in full view of the jurors. Blanche did neither, with Trump wearing his signature, extra- long red tie with no sign of any of his family members in the courtroom.

Blanche also promised that the jury would learn how “President Trump…had nothing to do with the invoice, with the check being generated, or with the entry on the ledger” relating to the payment made to actress and director Stormy Daniels that form the basis for the falsification of business records charge.

Additionally, Blanche stated–and this one was arguably not proper in an opening because it’s more of an argument than a statement–that there was nothing wrong with trying to influence an election. Said Blanche: “I have a spoiler alert: There’s nothing wrong with trying to influence an election. It’s called democracy.”

Former U.S. President Donald Trump appears outside the courtroom during his trial for allegedly covering up hush money payments at Manhattan Criminal Court on April 23, 2024 in New York City.

Former U.S. President Donald Trump appears outside the courtroom during his trial for allegedly covering up hush money payments at Manhattan Criminal Court on April 23, 2024 in New York City.

Curtis Means via Getty Images

Blanche also attacked certain witnesses in the opening, notably Michael Cohen, Trump’s former fixer lawyer, and Daniels. Blanche appeared to have trouble deciding how to refer to Daniels and ended up alternating between referring to her as her stage name, Stormy Daniels, and her legal name, Stephanie Clifford.

Notably, Blanche gave a pass to David Pecker, the former National Enquirer publisher who is at the center of the “catch and kill” strategy to find potentially damaging stories about Trump and subsequently pay to have them neutralized through offers of exclusive publication.

Cherry-picking witnesses to attack can be effective–Blanche did tell the jury the defense would focus more on some witnesses than others, presumably because they are more important–but it can also telegraph which witnesses the defense is most worried about. Blanche’s statements about Daniels were inconsistent given that he chose to talk about her but also tell the jury that her testimony was largely irrelevant.

But potential downsides from making inconsistent arguments or ones that are unlikely to appeal to the majority of the jury don’t matter if the real point is to put out everything in the hopes of getting through to one holdout. It’s hard to know exactly what will stick.

While the image of the lone holdout juror arises from the classic movie 12 Angry Men, where Henry Fonda played a man of conscience who refused to go along with his unreasonable male fellow jurors, it has today morphed into the general concept of jury nullification. As the phrase suggests, jury nullification is where the theoretical process of an impartial jury following the judge’s legal instructions is set aside–nullified–by unreasonable behavior or a pre-existing decision by a juror to refuse to convict (or acquit) without regard to the evidence in the case.

The concept has been around a long time but reached a particular zenith of attention during the prosecutions of crack cocaine that resulted in gross disparities in punishment for predominantly Black defendants. But just how many hung juries resulted from that type of nullification is hard to quantify and it may have been more of an urban myth than reality.

I, myself, tried many drug cases during the height of the crack cocaine prosecution era and cannot say that I ever saw an acquittal based on jury nullification and being able to unearth if it was the reason for an acquittal would be nearly impossible to do without extensive interviewing of jurors. Even statistics for hung juries are hard to come by and hard to analyze since many court records merely reflect the ultimate outcome of a case following a mistrial e.g., acquittal, dismissal or conviction without noting whether the mistrial occurred due to a hung jury. Juries certainly do hang but it’s still a relatively small percentage of cases with research indicating that they occur in the 12 percent range.

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Even if a jury does tell a judge that it is deadlocked, the judge’s first reaction is almost always simply to tell them to keep working. Even after multiple tries to break a deadlock, a judge will not declare a mistrial but rather give the jury what is known as a “dynamite” charge, designed to force the jury to reach a verdict. Such a charge typically reminds the jury that there is no reason to believe that any other jury will do better and that they should endeavor to reach a verdict.

Given the outline of the prosecution case given in their opening, the case against Trump looks strong and his defense lawyers may have good cause to feel desperate enough to aim for a deadlocked jury. But even if they achieve that it is still not a complete victory.

A hung jury simply results in a mistrial being declared and the prosecution has the choice of starting anew. There are cases where a prosecutor will give up after a hung jury and dismiss the case but that seems extremely unlikely here. The more likely scenario would be that Alvin Bragg’s office would seek an immediate re-trial–one that still might be concluded before the election.

Making a mistrial even more of a pyrrhic victory for Trump, a re-trial closer to the election would keep him off the campaign trial for an even longer period of time even closer to the election.

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