Ed. Note: This is Part II of a guest post by Madison, Wisconsin, criminal defense lawyer Christopher Van Wagner. Part I can be found here.

Anyone of a certain age recalls the famous closing argument by the late Johnny Cochran: “If the glove doesn’t fit, you must acquit.” What many may not recall is that it was not Cochran but a prosecutor, Christopher Darden, who risked it all by having Simpson try on the glove despite not taking the stand. Darden lost it all with that blunder.

He tripped on the oldest of trial maxims: Never ask a question if you do not know the answer. Yet in doing so, Darden gave Cochran the line that grabbed the attention of all twelve deliberating jurors and prompted a four-hour acquittal, barely enough time to get the deliberating jury’s sushi delivered and eaten, what with LA traffic. But what that ill-advised demonstration provided was the thing most defense lawyers have long sought: an argument, a point, or a piece of evidence which raised a nagging, persistent doubt in the minds of all twelve jurors, such that they were unanimously compelled to acquit. A criminal defense Rosetta Stone of sorts.

The Clancy case and its prolonged deliberation supports my evolving view that defense lawyers must balance the search for that magical line of argument or compelling piece of evidence or testimony, like the ill-fitting Isotoner in OJ’s case, with an equal or greater focus on what I believe is the Social Media mindset that has crept into jury rooms and taken full hold. You all know the mindset: it’s the one that allows your younger brother of 50 years to block you, shun you, unfriend you (because he cannot un-sibling you), and even decline front row Yankee ducats, all on account of your social media disagreement on the issue of the day. Let me explain with a little personal history here.

In my first 38 years of criminal trial work (prosecution for seven and the rest for the “bad guys”), I was involved in about 135-140 felony jury trials, split evenly between the two sides of the aisle. In those first four decades, I had zero hung juries. Zero. In the last seven years and another 10-15 felony juries, I have had four that ended in mistrials where the jury deadlocked and never reached a verdict. Even at my advanced age, I know a sea change when it hits me in the face.

In studying the four deadlocks, one can be chalked up to a lone crazy person on the jury, who claimed God told her my client (in a delayed report sex assault) was guilty despite the underwhelming-est of evidence. Thus, she had no choice but to “vote God’s will.” (Insert head-exploding emoji here.) In my formative years as an assistant prosecutor in Trenton NJ, I fought hard to remove any apparent lunatic who might hang a jury, and it seems I largely succeeded back then. But in my other three hung jury cases, some issue of the day seems to have produced an emotional need in at least a few jurors to hold fast “no matter what” based on their societal views. They were left unwilling, or maybe even unable, to surrender their firmly held views upon careful reconsideration of the views of jurors in the other camp.

In two of those cases, it looked like the social media era concepts of #metoo and #believethevictim caused jurors to start and finish with a split, 8-4 in one child abuse case and 6-6 in a delayed report child sex assault case. The fourth was 8-3-1 at the start and 9-2-1 at the point a mistrial was declared. (One wet noodle refused to vote either way.) The issue that appeared to underlie the most recent hung jury was the race of the client in a rural county in a negligent vehicular homicide case. The racially similar presiding juror started and finished the voting with a firm belief in the presumption of innocence despite the race of the client. (Imagine that.)

Some of us have done this defense thing for a long time. Clancy lawyer Kevin Reddington is 75 and shows no signs of slowing after 50 years in the trenches. He has me by a few that way, and he continues to inspire us oldheads while feeding off the haters’ attacks. (I’m looking at you, Nancy Grace.) Welcome to our world. But it sure looks like K-Redd has paid attention to juries lately, if my own recent experiences are any guide. He looks to all the world to have aimed not at a “glove doesn’t fit” moment but at the hearts of one or two jurors with whom the message about women’s health care would resonate and continue to do so.

In my bystander’s view, Reddington aimed directly for a hung jury at worst, by identifying a message targeted to a few select jurors and consistently encouraging the modern social media tendency to stick to one’s guns and simply “log off” the discussion when it became unproductive, but still voting in the minority, “dynamite charge” or no. And this is what I see as the creep of the social media influence into jurors’ behaviors. When in the last three days did one of the minority Clancy jurors* stop listening to the majority and instead assume a posture akin to the red/blue/purple social media mindset? Well before the Tuey-Rodriguez charge from Judge Sullivan, I suspect.

This recent development has led me, for one, to use voir dire to weed out jurors who cannot hold onto their view of the evidence just as tightly as if it were their most important Facebook or Twitter/X post, in the hopes of a long and perhaps deadlocked panel in the end. I actually ask them if they find themselves isolating online from those with whom they disagree. I also ask if they are strong enough to hold the line even in the face of pressure akin to the type Henry Fonda dissected and defeated in Twelve Angry Men.

Reddington sure seems to have done the same in the Clancy trial, and appears to be succeeding. He didn’t need a glove; he needed an issue and one or two jurors who would wed themselves to that issue, come what may in that cloistered room (albeit with meat or vegan fare these days). At this writing, his Clancy jury appears ready to hang, likely forcing the judge into a mistrial order and the Commonwealth into an unpleasant choice to retry or abandon ship. No doubt they will feel constrained to retry the case, but to the same end, perhaps.

But the takeaway for me is that the new ill-fitting glove defense is not a glove at all, but an “issue of the day” that you highlight for the two or three jurors you hope are willing to take the path and stay the course of most resistance, just as they do on social media. It is not the overwhelming persuasion of twelve men like days of old, but solid strategy in the days of Twitter. I do wonder if my own experience, hung juries left and right, after four decades of none, is shared by others in my shoes.

Let’s face it, facts are hard things, and usually decide cases far more easily than we trial lawyers like to think in our trial psychosis haze. But is this changing such that an issue can be leveraged to avoid conviction even in the most troubling of cases? I absolutely believe this is the new reality of the jury mentality.

*Ed Note: It’s being reported that the jury breakdown is 11 to 1, and that Reddington asked the judge to remove the lone holdout, which the judge properly refused. It’s unclear whether the one holdout is for conviction or otherwise, but it could be surmised that Reddington’s request for removal suggests that the eleven have accepted the insanity defense.