Robbins: What is a stealth juror?
Something that each side in the New York Trump hush money trial must be concerned about is the possibility of one or more stealth jurors. We’ll come back to precisely what that is in just a sec.
Before we get there, though, two things are important to appreciate. First, our criminal justice system —and in many ways, our democracy itself — is based upon the foundational principle of fair and equal justice before the law. The administration of that principle includes and presupposes an accused’s right to be tried before a fair and impartial jury.
Second, it is key to understand that to convict one of an offense, such as one with which the ex-president is charged, two standards must be met: first, one must be held guilty “beyond a reasonable doubt” and, second, there must be unanimity among the jurors. In felony cases, such as Trump’s, 12 jurors sit in judgment and, to convict — to hold him liable for a crime — all 12 must agree upon the defendant’s (in this case, Trump’s) guilt.
As a quick aside, one is never found “innocent.” The best that one can hope for is a finding of “not guilty” which, while it may imply innocence, what it might equally implicate is simply that there was not sufficient evidence presented to find the defendant guilty “beyond a reasonable doubt.” One need to think back no further than the O.J. Simpson “trial of the century” in 1995. While there are some, perhaps, who believe that Simpson was found innocent, what was found, instead, is that there was not sufficient evidence to convict.
Left hanging
Another possible jury outcome is that of a “hung jury” (also referred to as a “deadlocked jury”) which lacks resonance with the “hang Mike Pence” rioters of Jan. 6, 2021. What it means instead is that the jurors could not (or, perhaps, would not) come to a unanimous decision, the result of which is a failure to convict.
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When, however, a jury is “hung” or “deadlocked,” the case may be tried again whereas, owing to the double jeopardy clause of the Fifth Amendment of the United States Constitution (and similar clauses in the various state constitutions), if one is found not guilty, one may not again be prosecuted for substantially the same crime. As such, a finding of not guilty is a get-out-of-jail-free card whereas when a jury is hung, not so much — the result of a hung jury may be a form of déjà vu, this time, another trial before another jury.
The Sixth Amendment of the United States Constitution assures that “…the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The emphasis, though critical, is mine. All 50 states have similar provisions in their respective state constitutions. In Colorado, the guarantee is found in Article II of the Bill of Rights. Section 16 thereof provides that, “In criminal prosecutions, the accused shall have the right to … a speedy public trial by an impartial jury …”
New York, where the current Trump trial tempest is aswirl affords a criminally accused similar protections.
From a historical perspective, a “jury of one’s peers” is similar to the expression “judgment of his peers” which simply means a jury trial and comes from the Magna Carta which, if you recall your history, issued forth from Mother England in 1215 and was the first document to put into writing the principle that the king and his government were not above the law. In the context of the Trump trial and those pending, ponder on that, if you will, for a moment.
Besides declaring that the sovereign shall be subject to the rule of law, what the Magna Carta did was document the liberties held by “free men,” and provided the foundation for individual rights in Anglo-American jurisprudence, a foundation upon which our laws are constructed.
The purpose of guaranteeing trial before a jury of one’s peers is to ensure that a jury’s verdict is not tainted by biases that jurors may harbor before being presented with the evidence of the particular case.
Undetected personal agendas
And that, at last, brings us to the possibility of stealth jurors.
The process by which potential jurors are selected for jury duty includes a device called voire dire (literally, in Latin, to “speak the truth”) which generally consists of oral questions posed by the respective lawyers and/or the judge (and at times, as in the New York Trump trial, questionnaires) propounded upon potential jurors, to get to their respective prejudices and predispositions in an attempt to weed out those who may be biased in favor or against either the defendant or the prosecution.
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A stealth juror is a potential juror with an agenda of his or her own who may lie or otherwise deceive the court to circumvent the rights of the defendant to a fair and impartial jury. It does not take much imagination in our current polar times to believe that one or another of the potential Trump jurors might have tried to slip beneath the radar of scrutiny and, the evidence be damned, hope to be a holdout either for or against conviction In so doing, if such a juror has, in fact, slipped through, the result may be the subversion of the guarantee of impartiality itself.
Did one or more stealth jurors slip beneath the safeguards of the current trial? It is, of course, impossible to know. What one can be sure of, however, is if the ex-president is convicted, he will undoubtedly (and loudly) claim whether the evidence supports it or not that it emphatically was so.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
