At the end of the week, there was a concerning development related to Trump’s conviction. There was a post to the New York Court’s Facebook page which alleged that a juror had disclosed information about deliberations to a relative.
Of course, the Trump team seized on this news to claim that the verdict needs to be set aside. But, despite Trump’s tendency to act prematurely, the Trump team is several steps away from getting the verdict tossed.
The initial hurdle to overcome is identifying the source of this post. As even an elementary school student knows, anybody can make up a user name and post to a website. And that post can say anything. All that we have at the present time is some unknown person is claiming to be a relative of an unidentified juror and asserts that the juror disclosed information from the deliberations to that person. While, in theory, it is possible that the judge will allow the defense to question each of the jurors, it is equally, if not more, likely that the judge will make the defense prove that the post came from a real person who actually knows one of the jurors and is willing to swear that his post is true. If the defense can do that, the court would almost certainly allow either the prosecution or defense to call that juror to testify to corroborate or dispute that posters testimony.
Assuming that the defense can prove that a juror made the alleged statement, a mistrial is not guaranteed. Sharing the state of the deliberation would be juror misconduct. Before the start of deliberations, juror misconduct would probably get that juror removed from the jury and replaced with an alternate. After a verdict has been reached, however, the issue becomes whether the misconduct prejudiced the defense. For example, the jurors are not to separate without the court’s permission. But if the bailiff having the custody of the jury allowed a juror to take a cigarette break and the rest of the jury ceased deliberating until that juror returned, there would be no prejudice. While I can’t say for sure about how New York views the “disclosing” of information about deliberations, the news reports of the post have the information going from the juror to the relative. If that is true, it seems to me like the disclosure would have had no impact on jury deliberations. Now, if the juror had said something like the initial vote is 11-1 and the holdout is fixated on issue X which the rest of the jury hopes will be resolved by the transcript that the court would be reading back to the jury the following morning and the relative had given advice to the juror about other evidence supporting the conviction which the juror brought back to the jury room, then the misconduct would have potentially impacted the verdict. In my state, the presumption would be that the misconduct prejudiced the verdict, but the prosecution could rebut that presumption, and here, unless there is something more that comes out, it seems like the prosecution might be able to show that there was no prejudice.
Of course, this is a developing story and we will probably here more details between now and mid-July. Contrary to what Trump spin doctors have been falsely staying, Judge Marchan has mostly made rather conservative rulings designed to prevent any possible reversal on appeal. There are one or two big rulings that could lead the appellate courts to question the trial but those mostly go to whether the charges were proper in the first place. I would expect Judge Marchan to continue that practice in handling this issue and his disclosing this issue to the parties is a comforting sign that he will continue to follow New York law in this case.
