Opinion: Hunter Biden Prosecutors Might’ve Already Lost the Jury

The Hunter Biden trial starting in Wilmington, Delaware, is a poster-child case for potential jury nullification.

Biden, the only surviving son of President Joe Biden, is being tried for possessing a firearm while being a user of illegal drugs or drug addict and for lying about the same on a purchase form when he bought a gun. On the surface, the prosecution—a culmination of more than a half-decade of investigation by Special Counsel David Weiss—would appear to have a slam dunk case because there is no real dispute he bought the gun, or that he had a drug addiction around the time he bought the gun.

But beneath the surface, the case is ripe for the phenomenon of jury nullification.

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The strict definition of jury nullification is when a jury has determined that a defendant is guilty beyond a reasonable doubt—but either rejects the evidence or refuses to apply the law because the jury “wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.”

Let’s be clear. Juries are not supposed to do that. They are supposed to convict if the evidence proves guilt beyond a reasonable doubt and acquit if it doesn’t.

But while the definition of nullification conjures up images of a jury making a social justice-inspired speech in refusing to convict, the reality is quite different because the jury does not need to make such a blatant statement. Rather, the sense that jurors may have of unfairness can be evidenced in an acquittal—despite strong evidence of guilt. (There’s also, of course, the possibility of a hung jury.)

What that means is skilled defense counsel can bring out the factors of unfairness without having to specifically ask a jury to ignore evidence or the law, while skilled prosecutors need to guard against the kind of evidence and testimony that may lead to nullification.

Thus far, the trial is revealing an outmatched prosecution, which has already blundered into a couple of minefields. Defense counsel Abbe Lowell is a seasoned high-profile defense counsel who has defended Ivanka Trump and Jared Kushner and got former presidential candidate John Edwards acquitted on campaign finance charges (brought by then-DOJ lawyer Jack Smith).

In the opening by the Biden defense team, Lowell focused on the requirement that the false statements on the gun ownership form had to be “knowing”—a term that Lowell claimed the prosecution tried to avoid in its opening. The utility of this defense is that it works synergistically with the effects of Biden’s admitted drug addiction affecting his decision-making abilities, as well as necessitating a deep dive into the details of his addiction and the specific timeline of when he was using crack cocaine and his efforts to get clean.

The defense appears to be setting up a defense theory that, on the specific date Biden bought the gun, he genuinely believed he was not an addict because he had just finished an 11-day rehabilitation program.

This kind of evidence is likely to have a powerful effect on many jurors. One such effect may even have been seen when a juror began crying during the defense opening statement. While there is no way of knowing exactly what caused that reaction, it could certainly be an example of the emotional empathy some jurors may feel for the addiction cycle that Hunter Biden experienced, as well as his past traumas of losing his mother and sister in a childhood car crash that he and his brother Beau survived. And then there was Beau’s death from brain cancer in 2015.

That drug addiction is a potential double-edged sword for both defense and prosecution was recognized by the central role it played in the voir dire process for jury selection.

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Among the questions asked of the jury pool was a request for a show of hands if any prospective juror and/or their families had been affected by drug addiction. According to reporting, all but a few of the pool raised their hands and the seated jury, including alternates, is about half-composed of those who had that experience with drug addiction.

The mere asking of the question was already a win for the defense. Or, rather, it was a lose-lose question for the prosecution, because the response was so overwhelming it made it impossible to eliminate all who raised their hands. However, it informed the defense exactly which jurors had that first-hand experience with drug addiction.

The question also made it plain to all of the jurors that drug addiction was central to the case, and perhaps elevated that factor above other factors, such as lying on the gun purchase form.

The prosecution appears to be trying to bludgeon its way through the defense assertion that on the date Biden filled out the gun form he genuinely believed he was addiction-free by putting on extensive testimony about the extent of his addiction. To this end, the prosecution chose to play excerpts from his autobiography, Beautiful Things, allowing the jury to hear Biden speaking in the audiobook version, describing his descent into drug addiction following the death of Beau Biden from brain cancer.

The painful episodes being recounted caused Hunter’s sister—Ashley Biden—to dab at her eyes as the audio played and at times lean her head into that of her mother, first lady Jill Biden, as they listened. At one point, as Hunter Biden’s voice was played for over an hour describing what was reported as the “darkest and most dangerous moments of his addiction,” the first lady draped her arm around Ashley Biden’s shoulders.

The prosecution is banking on the idea that these excerpts constitute confessions by Biden that he must have been knowingly lying when he stated on the gun application that he was not a drug addict that day. But holding aside the difficulty of proving what was in his mind that day, there is the danger that putting on such possibly heart-wrenching evidence could easily cause the jury to sympathize with the defendant—as well as his family—to the extent that they will be inclined to look for ways to nullify the prosecution’s theory of the case.

But if there is an acquittal in the case, then the path to it may have been laid out in the prosecution’s own opening statement.

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There, prosecutor Derk Hines asserted to the jury that “addiction may not be a choice” but buying a gun is a choice and that Hunter Biden “isn’t charged with possessing drugs.” Following up on this, Hines also stated, “We would not be here today if he was just a drug addict.”

These words may well come back to haunt the prosecution for they likely raise in the jury’s mind two questions. First, they may wonder why if the prosecution believes addiction is not a choice then how can an addict make “knowing” decisions. The prosecution is asking them to conclude that sometimes drug addicts cannot control themselves but other times they can. But the second point is perhaps most dangerous for the prosecution.

The government’s assertion that Hunter Biden “would not be here today if he was just a drug addict” shouts the quiet part out loud—as Hunter Biden is clearly not “just a drug addict.” He is the son of a sitting president and, by this statement, the prosecution all but invites the jury to wonder if any other drug addict would have been charged in these circumstances. That’s how you nullify juries.

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