Why a 'hung jury' strategy poses major problems for Trump: ex-federal prosecutor

24 April 2024

Justice Juan Merchan has made it clear that he wants to see former President Donald Trump's hush money/falsifying business records trial move along at a rapid pace, and he's getting his wish. Jury selection started on April 15, and on April 22, the prosecution's first witness — former National Enquirer Publisher David Pecker — was called to the stand. Pecker's testimony continued the following day, and MSNBC's Lisa Rubin predicted it would last all week.

In an opinion column published by the Daily Beast on April 24, former federal prosecutor Shan Wu argues that Trump's defense team — including attorney Todd Blanche — appears to be using a "throw everything against the wall and see what sticks strategy" that could result in a hung jury. But Wu emphasizes that a hung jury could present some problems for the former president.

"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," Wu writes. "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."

On April 22, Blanche drew a lot of mockery from Trump's critics when he described the former president as a devoted family man. But Wu points out that even a flawed argument from a defense lawyer can have an effect if any of the jurors are swayed by it.

"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," Wu writes. "It's hard to know exactly what will stick."

Wu notes that when a trial does end in a hung jury, another trial may follow — or the case may be dismissed. A second trial in Manhattan District Attorney's hush money/falsifying business records case, according to Wu, could be bad for Trump politically.

"A hung jury simply results in a mistrial being declared, and the prosecution has the choice of starting anew," Wu explains. "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 retrial — one that still might be concluded before the election."

The former federal prosecutor adds, "Making a mistrial even more of a pyrrhic victory for Trump, a retrial closer to the election would keep him off the campaign trial for an even longer period of time even closer to the election."

Shan Wu's full Daily Beast column is available at this link (subscription required).

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