Step By Step

I would not make a good juror - not for that fuckin' guy.

What is likely to happen in the jury room at the Trump trial

The jurors in Donald Trump’s Manhattan criminal trial are about to discover how weird their job really is.

The key moment won’t be when New York Supreme Court Justice Juan Merchan finishes offering instructions to the jury in Donald Trump’s criminal trial in Manhattan. It won’t be when the jury files out of the courtroom, slated to return only when it has reached a verdict. The key moment, the moment in which the jury’s power flips from potential to kinetic, comes when the officer escorts the jury to the jury room and the door shuts with a click.

For the first time, the jurors will be allowed to talk about the case, to discuss not only the witnesses they’ve seen but also the evidence those witnesses offered. (It’s likely some of the witnesses have been discussed in the abstract; one witness at the Astor trial’s cheetah-print outfit was a point of discussion in the jury room afterward.) And, for the first time, the jurors will realize the hard part of their jobs has just begun.

Throughout Trump’s trial, now about a month old, I’ve occasionally written about my experience sitting on a jury in Manhattan 15 years ago. The trial centered on Anthony Marshall, the son of millionaire New York socialite Brooke Astor, and allegations that Marshall had taken advantage of his mother’s diminished mental capacity as she aged to change her will.

Like the jury in the Trump case, we were selected and seated in the spring. Unlike the attorneys in the Trump trial, the prosecution and defense in what was then known as the Astor trial didn’t rest their cases until the fall. We spent a half-year working together, spending hours listening attentively in the jury box and at least as many hours chatting and gossiping behind closed doors in the jury room. At least until that door-click moment arrived for us, and suddenly we were put to work.

No one can know exactly what the Trump jury will do as deliberations begin or how long they will take. Last week I tried to reinforce this point: Even the jurors walking into that room are probably incorrect about how the process will unfold. Each of us has our assessments of the world around us that seem justified and accurate. When we start comparing notes, though, we quickly understand how subjective our perceptions can be. And given that the issue at hand is potentially a person’s freedom, a jury — at least a jury that takes its job seriously, which I and the system assume as a default — must carefully consider how to blend those subjective experiences into a shared verdict.

I read some commentary Wednesday morning, as the judge prepared to offer his final instructions to the Trump jurors, suggesting that the jurors indicated an eagerness to wrap things up given their willingness to work late into the evening on Tuesday. I suspect that’s wrong. Probably, instead, the jurors are eager to engage in the task for which they were selected.

The 12 people chosen to evaluate whether Trump is guilty are keenly aware of the import of their decision and, by now, intimately familiar with one another and how each of them views the role they’ve been asked to play. They’ve endured weeks of presentations and arguments from lawyers and the judge. They’ve seen how the lawyers, the audience and presumably the defendant scrutinize them for their reactions to evidence as though they’re feral cats being lured with treats. Finally — at last — they get to be in the driver’s seat.

What we did (if I remember correctly 15 years later) was begin with a survey of the different charges and run through a trial vote on the defendants’ guilt. (Marshall was charged along with his attorney Francis Marshall.) We immediately realized that the deliberations would not be quick.

It’s crucial to remember that the task presented to jurors is not simply to answer the question, “Did he do it,” but instead the more particular question, “Does the evidence presented remove any reasonable doubt that he violated the letter of the law?” In the jury box, you’re thinking mostly about the first question. In the jury room, after that door click, you’re considering the second one. That’s the point of the judge’s instructions.

Our case was different from the one under consideration by the Trump jurors because it involved a broader array of charges. That isn’t to diminish what they will need to consider, certainly, but the 34 charges Trump faces are all counts of “falsifying business records in the first degree.” The evidence needs to be compared only to that particular statute in each of the 34 cases. Perhaps all 34 charges will be decided the same way, with the jurors quickly agreeing that each was or wasn’t proved beyond reasonable doubt. Or, perhaps — and perhaps the more likely outcome — they will disagree on some counts for specific reasons and need to figure out how to resolve those differences.

What the jurors can’t and shouldn’t do is consider what the ramifications of their decision will be. They aren’t being asked to punish Trump but, instead, to evaluate his guilt based on the available evidence. This is why the judge was frustrated at Trump’s attorney Todd Blanche on Tuesday; Blanche made a comment that Trump might face prison time, tying the verdict to a punishment in a way that could influence how jurors vote on the charges.

I can offer an example. After deliberating for 11 days in the Astor trial, we returned a mixed set of verdicts for the two defendants. Only after we had done so did we learn that one charge on which we returned a guilty verdict resulted in a mandatory prison sentence — meaning that the 85-year-old defendant would have to serve time. That was one of the charges on which we’d spent the most time because several of us, including myself, were skeptical that the letter of the law had been met. So we tallied the value of what Marshall had siphoned off his mother’s fortune, determining that it exceeded the statutory requirement. It did, but not by much. Guilty, beyond a reasonable doubt.

Had we known that a guilty verdict on this charge meant that Marshall would have to go to prison, it may have influenced our decision. But we didn’t know and shouldn’t have.

Deliberation is hard. You try sitting down with 11 strangers and reaching unanimous agreements on complicated issues. Tempers will flare, as they did on our jury. But there is no rush; after a month of evidence and courtroom jockeying, the court and the attorneys and the defendant are on the jury’s clock — and at its beck and call. Jurors may send out questions seeking clarification (and then wait for hours while the lawyers argue with the judge about how to respond). They may request to see evidence that was presented in court. (I distinctly remember holding and considering Brooke Astor’s will as I sat in the jury room on the 15th floor of the criminal court building in Lower Manhattan.) Until they’ve reached agreement — or decided that they can’t — the court and everyone else just has to wait.

I have a photo from the Astor trial deliberations on my phone, one of a surreptitious few I took (against the rules, I admit) while serving on that jury. It shows two of my fellow jurors sitting at the large table in the center of the relatively small jury room, a room that is presumably identical to the one at which the Trump jurors will sit. In the corner is a blackboard on which we’d written all of the charges and how we’d voted in evaluating them. The date of the photo indicates that it was taken the morning we returned our verdicts.

After assuring ourselves and each other that we were confident in our decisions (and after one more free, state-paid lunch), we let the court know we were done. We were called into the courtroom for the last time, and the verdicts were read. Each of us was then polled — did we agree with the verdicts presented? We all did.

And then, just like that, we were all unemployed. The job was done. We returned to being regular New Yorkers, people who were only peers of a Brooke Astor or a Donald Trump in the generous view of the American legal system.