A longtime Alabama attorney, who is one of the nation's foremost authorities on criminal defense, says jury nullification might be Donald Trump's best chance to beat the classified-documents charges against him.
Donald
Watkins, who holds the U.S.
record for winning the most counts in a single-defendant federal
criminal case, explains jury nullification, spells out the delicate
legal tactics that go into seeking a jury-nullification verdict, and
provides fascinating psychological and body-language analysis of jurors
that can play into the equation.
First, Watkins provides an overview of the Trump case, along with other cases looming on the horizon for the former president. Watkins also presents his insights on Special Counsel Jack Smith, with whom he did battle in a highly publicized public-corruption case in Alabama. That experience left Watkins with a highly unfavorable impression of Smith, and he is not shy about expressing those opinions.
In an analysis and editorial-opinion piece at his DonaldWatkins.com Web site, the courtroom veteran with roughly 50 years of experience, says Smith and his prosecution team hold a number of advantages going forward in the Trump case. Under the headline "'Jury Nullification' May Save Donald Trump in Miami Criminal Case," Watkins writes:
Yesterday (Friday, 6/9/23), I reviewed the 38-count Indictment in Donald Trump’s criminal case involving Trump’s mishandling and retention of classified documents. Thirty-seven of the counts were leveled at Trump and his aide, Walt Nauta. An additional count was charged against Nauta, alone.
Since Thursday, I have been watching talking heads on TV discussing both sides of the case. They are clueless about the pretrial and trial process in Trump’s case. They know even less about the trial strategies for each side.
None of these talking heads has acknowledged that Special Counsel Jack Smith will be indicting Trump in Washington on charges relating to the January 6th Insurrection, as well. This second Trump indictment is called "prosecutorial redundancy." It gives Smith two bites at the apple.
In August, Trump will be indicted by Fulton County, Georgia, District Attorney Fani T. Willis (D-Atlanta) on voter-fraud charges.
In April, Trump was indicted by Manhattan District Attorney Alvin Braggs (D-New York) on charges stemming from a “hush money” scheme involving $130,000 in secret payments Trump made to porn actress Stormy Daniels in 2016 while he was a candidate for the presidency.
In Watkins' view, there is a purpose behind this multi-pronged approach to the various legal challenges Trump faces:
The state and federal indictments are designed to wear Trump out, imprison him, and kill off Trump's 2024 presidential campaign by prosecutorial triangulation.
Donald Trump is now the “target” of an all-out, well-coordinated state and federal Blitzkrieg. This is a "do or die" moment for Trump.
In essence, Watkins says, Smith is leading a "coordinated Blitzkrieg" against Trump:
I saw Jack Smith’s news conference on Friday, where he took no questions. As discussed in my November 25, 2022, article titled, “Jack Smith: Too Flawed to Serve as Special Counsel in Trump’s Case,” Smith's soiled reputation and sordid history as the former head of the Office of Public Integrity makes him unfit for the Special Counsel’s job in Trump’s case.
I do not respect Jack Smith as a federal prosecutor. My lack of respect for Smith goes back to the criminal case of U.S. v. Milton McGregor, et. al., Cr. No. 2:10-cr-186-MHT (M.D. Ala., 2010-2011). This case is discussed in detail in my November 25, 2022, article.
Excerpts from my emails to Jack Smith on behalf of my client, Milton McGregor, are reprinted in the 2022 article. They speak for themselves.
On October 4, 2010, Jack Smith charged McGregor and ten other defendants in a 39-count Indictment with committing 138 federal felony offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice, and making a false statement.
After a trial and retrial, Jack Smith lost on all counts and all listed offenses against Milton McGregor and seven of the defendants who chose to go to trial. Three of the defendants pled guilty prior to the first trial.
Watkins presents other reasons for his opinion that Jack Smith is a dubious character:
During the criminal proceedings, Jack Smith openly embraced two flaming racists -- Alabama state Sen. Scott Beason and state Representative Ben Lewis -- as instigators of the underlying FBI investigation and as cooperating government witnesses during the trial. Beason's and Lewis' racism, which was grossly repugnant, was captured on audiotapes.
Jack Smith has also proven to me that he is capable of destroying innocent lives, without blinking an eye. The emotional stress that Smith placed on one of the McGregor-case defendants – Ray Crosby -- caused him to suffer a heart attack and die on the eve of his retrial.
Based upon what I witnessed in McGregor's case, destroying innocent lives is Jack Smith’s only area of expertise.
As a leading authority on criminal defense, Watkins says the Trump case is winnable. But actually getting to that point, he says, will be "a very tall order":
Jack Smith’s criminal case against Donald Trump can be won by Trump, but not with his current defense team. They do not have the litigation skills, depth of experience, or win-loss record for defending this kind of high-profile, politically complex criminal case, where losing is not an acceptable option.
It is important to remember that Jack Smith only needs to win one of the 37 counts against Donald Trump. If this occurs, Trump will likely be sent to a federal prison camp for at least five years.
Trump's criminal-defense lawyers must win an acquittal on all 37 counts against their client. This is a very tall order.
A mistrial will not suffice in this case for many reasons, including the emotional and physical stress of the ordeal on Trump and the adverse impact that a retrial would have on his 2024 presidential campaign.
Trump must achieve total victory against a cold, hard-core, federal prosecutor who benefits from a structurally rigged federal criminal -justice system. Remember, whenever the trial judge and prosecutors get paid from the same source (i.e., the U.S. Department of the Treasury), there is a built-in conflict of interest.
Watkins sees parallels between the Trump matter and one of the biggest cases of his own career:
During my representation of former HealthSouth CEO Richard Scrushy in U.S. v. Richard Scrushy (2003 to 2005), federal prosecutors started out with an 85-felony count Indictment against Scrushy. Using laser-guided pretrial motions, my defense team reduced the number of counts from 85 to 58. We went to trial in 2005 on 36 counts and won all of them. The remaining 22 counts were characterized as forfeiture counts that would have only come into play if we had lost any one of the 36 counts involved in Scrushy's criminal trial.
In Donald Trump’s classified-documents case, Jack Smith has added one more count to our record-breaking win of 36 counts in Scrushy's trial -- a record that still stands today. By raising the number of trial counts to 37, Smith is trying to make it nearly impossible for Trump's legal to win his case. Jacking up the number of counts is one more legally permissible way for Smith to rig the criminal-justice process against Trump.
It took an incredible amount of focus, energy, resources, and litigation skills for my defense team to go from 85 counts to 58 in Richard Scrushy’s case, then from 58 counts to 36, and finally, from 36 to 0 counts.
In my opinion and with all due respect, Donald Trump's criminal-defense team lacks this level of trial skills, knowledge, ability, and experience.
Watkins concludes by addressing "The Art of Inspiring Jury Nullification":
Regardless, there is one tool left for Donald Trump to win his criminal case in Miami. It’s called “jury nullification.” This tool has been used in many high-profile cases, particularly in the South.
I have successfully used “jury nullification” in cases that many inexperienced legal pundits thought could not be won. This is why I rarely listen to lawyers who do not try criminal cases to verdict on a regular basis. A lawyer’s win-loss record in the “gladiator pit” still matters to me.
Under “jury nullification,” trial jurors are permitted to use their common sense to: (a) determine the facts of the case, (b) apply the applicable law, as provided by the trial judge, to those facts, and (c) decide whether Donald Trump is the “victim” of a politically motivated prosecution that is being carried-out by Jack Smith. If trial jurors believe that Smith’s motivation for prosecuting Trump is political, they are free to ignore all of the prosecution’s witnesses, documents, photos, and audio-recordings and render a verdict in Trump’s favor on all 37 counts.
If jurors render “jury nullification,” there is nothing President Joe Biden, Attorney General Garland Merrick, Special Counsel Jack Smith, FBI Director Christopher Wray, or the assigned trial judge can do about it. Trump’s case would end with “Not Guilty” verdicts, all of which must be unanimous – 37 times.
Reaching a jury-nullification verdict does not happen by accident, Watkins says:
There is a specific technique for identifying potential “jury nullification” candidates for Trump’s trial jury. For example, subservient people are not well-suited to render “jury nullification” verdicts. They are often too docile to go against mean-looking federal prosecutors.
There is also a detailed profile of the best candidates in the jury pool for “jury nullification.” Extensive body-language skills are also needed in this juror-identification process.
Additionally, there is a specific process for getting high-quality “jury nullification” candidates into the jury pool from which 12 trial jurors and 2-4 alternates will be chosen in Donald Trump’s case.
Finally, Donald Trump’s success at implementing “jury nullification” will depend largely upon: (a) the courage of his lawyers, (b) the manner, degree and level of their trial preparation, and (c) the flawless execution of their client's “jury nullification” strategy.
Stay tuned for more analyses in the high-stakes criminal case of U.S. v. Donald J. Trump, et. al.
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