Another Friday afternoon, another potential bombshell in the Trump “hush money” trial in New York City.
The judge who presided over former President Donald Trump’s trial notified the parties that on May 29, a user named “Michael Anderson” (if that is his real name) posted on the New York Unified Court System’s public Facebook page that “My cousin is a juror and says Trump is getting convicted . . . Thank you folks for all of your hard work!!!!!” (Emojis omitted).
Of course, if true (and that’s a BIG if), this comment raises immediate concerns and should raise alarm bells for all involved in the trial.
That’s because jurors are not supposed to discuss the case with anyone—even other jurors—until the judge submits the case to them and their formal deliberations begin. This requirement is crucial to maintain any semblance of integrity in the jury trial process (setting aside the other issues related to this specific prosecution).
As part of his instructions to the jurors right before they began their deliberations, Judge Juan Merchan admonished that “During your deliberations, you must discuss the case only among yourselves; you must not discuss the case with anyone else, including a court officer, or permit anyone other than a fellow juror to discuss the case in your presence.”
Jurors typically receive a similar admonishment at the beginning of the trial whenever the judge swears them in to begin their service. A handbook for jurors provided by the New York court system explains that the judge explains to jurors at the beginning of a trial that each “juror pledges to act fairly and impartially and follow the law . . . . [including the instruction to] not discuss the case with anyone (including other members of the jury) until all evidence has been presented and the jury retires to deliberate.”
If Anderson’s comment turns out to be true, at least one juror clearly did not follow those instructions with a potential consequence that the jury’s verdict against Trump could be tossed out.
So what happens now?
First, an investigation into the comment is likely to take place to find out who made it and if that person is, in fact, related to a juror. The judge will likely hold a hearing allowing the defense and the prosecution to present arguments about how this investigation should proceed. Given the unprecedented nature of this prosecution and the serious consequences that will follow from it, everyone should want an expeditious resolution.
Second, if the comment is found to have been made by a real person, who is really related to a juror, that’s where things get interesting.
The judge would likely hold further hearings and question the juror, under oath, about his or her conduct. Depending on what the conduct consisted of, that juror could find himself or herself subjected to criminal liability—though even that could be very difficult to prove given New York’s juror misconduct statutes. And regardless, if the juror shared information, he or she clearly violated his or her oath.
Third, in terms of what this means for the verdict, there is recent precedent from New York’s highest court that could call for the verdict against Trump to be set aside. In a 2019 case, People v. Neulander, a unanimous New York Court of Appeals (New York’s highest state court), upheld the setting aside of a murder conviction where a particular juror had texted extensively about the case during the trial and then lied about it.
Finally, it is notable that the judge in this case did not sequester the jury, which would have prevented them from having communication with others outside the trial. Juries in other high-profile cases—such as the O.J. Simpson case—have been sequestered to keep outside pressures from influencing their decisions and avoiding potential issues like the one the parties in the Trump trial now face. Of course, sequestration itself is controversial and its benefits and drawbacks are hotly contested. Still, if ever there was a case where sequestration might have been appropriate, this seems to be the one.
We’re still early in this process. The Facebook comment could be nothing—a random comment from a random person designed to wreak havoc. As some have reported, the poster’s profile says that the is “transabled & a professional sh– poster.”
But if it’s not—if it was made by a person related to a juror—buckle up. Things are going to get wild. And it would be another black mark against this already-besmirched prosecution.
