The Silence of the Criminal Defense Bar

 

 

To me, there is both a technical legal issue here and what you might also call a wider cultural issue, which is: Where is the defense bar in the United States? Usually, when there is a defendant who’s alleging a violation of a serious constitutional right, the defense bar is there, talking about it. Here, there is just utter silence. If the defense bar thinks that this Trump’s jury-unanimity argument is weak, they are certainly not saying it. If the defense bar thinks Trump’s position is strong, again, they are certainly not saying it. They are not shouting from the rooftops.

These are the same litigators who have to go into court when litigating other New York crimes prosecuted against their clients. Trump’s position, if upheld by the courts, would be a very valuable argument with regard to analyzing New York state law. Keep in mind that New York City’s defense bar includes some of the most elite lawyers in the United States, both practicing in the federal courts and the New York state courts.

I’m an academic, and other academics have published on the issue of Apprendi and jury unanimity. I’m in Ireland—I ask: Where are all the American and U.S.-based academics? Every law faculty has professors who teach procedural criminal law and substantive criminal law. Every law faculty has constitutional scholars, and this is a constitutional issue. I can guess as to why there is silence. Is this issue of little moment to them? Is it that they all support Trump and don’t want to say something that might hurt him, or that they oppose him and don’t want to say something that might inadvertently help him? Could either of these be the case?

You don’t even see vanilla analyses of these issues appearing in the major journals or even the professional journals, like the legal newspapers that report news and events of the day with short, neutral analyses. It’s a stone wall of silence on the jury-unanimity issue and that is really telling. I happen to think—and I don’t know this to be the case, as it is more of a sociological or anthropological question—one reason you have this silence is that many know Trump is right on this particular issue, but they are afraid of becoming unpopular by saying it out loud. It is Orwellian, or, perhaps, better described as characteristic of the behavior of primary school students.

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I think it’s catastrophic, though, in terms of American legal culture that practitioners and others are afraid to talk about what they believe in academic settings and elsewhere beyond academic settings.

It should be that the loudest and most vigorous speech comes from the defense bar. They’re the guys who are constantly saying, “We will defend every single criminal to make sure that every right is protected. Don’t hold it against us that we defend wrongdoers. You could be the next target of a malicious prosecutor.” Here, if they were willing to go out and say, “Trump is guilty, and the jury instructions were correct, and here’s why”—all that would be very interesting. But we don’t even get that. We get nothing. Is it that they simply don’t care—or, even worse, that they are deeply afraid of being unpopular. I don’t know how a defense bar could be successful if popularity is governing their willingness to talk about these issues, irrespective of whether they think Trump’s jury-unanimity rights were violated.

Looking at this from the outside—and I certainly have views about the jury-unanimity issue—there is a larger cultural problem here which is, arguably, more important than the concrete legal issue. At the end of the day, it doesn’t matter whether Trump’s convictions are upheld. If he loses this case, it doesn’t affect whether he is president. He’s in office. The only way to remove him is via a House impeachment and a Senate trial ending in conviction, and I don’t see that happening. For that reason alone, we should be able to have these discussions without being afraid of political consequences because nothing that happens in the court will affect whether Trump is or is not president at this point. And yet, the stone wall of silence is still there. And like I said, it is difficult to explain why it is there.

An extract from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Silence of the Criminal Defense Bar,’ New Reform Club (Nov. 5, 2025, 8:17 AM), <https://reformclub.blogspot.com/2025/11/the-silence-of-criminal-defense-bar.html>;