Dateline: July 25, 2023. Waco, Texas.
This article contains excerpts from an interview between this reporter and Juror #1, the foreperson of the Texas jury that convicted Donald Trump of negligent homicide last week in Waco, Texas, after the eight week trial of Donald Trump ended in a guilty verdict. Sentencing will take place next week. The jury foreperson (“FP”) shall remain anonymous for reasons of personal safety.
PK: Was it a difficult verdict to reach?
FP: Not really. After we reviewed the Texas statute, all but one person felt Trump had committed a crime. We spent a couple of hours discussing the doubts of the one holdout, and in the end she agreed that Trump should be convicted.
PK: What evidence was most compelling in reaching your decision?
FP: We looked at it like this. The judge gave us the statute. It said: “A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.” The prosecution hammered home the point about criminal negligence. They kept saying that negligence is the failure of a person to act how a competent person would act in a similar situation. The judge read us the definition of negligence in Texas. He told us that under Texas law negligence is defined as, “the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” It became quite apparent after presentation of all the evidence that Trump was far from prudent. They drove home the point that compared to prior presidents who faced similar emergencies, Trump’s actions were self-serving and, in our opinion, led to the deaths of thousands of Texans.
PK: How so, what made him seem so incompetent?
FP: I guess it was the way he handled the whole COVID-19 crisis. At the beginning denying its severity. I mean the way he kept downplaying it. But what really convinced us was the prosecution’s case that his whole approach to finding a cure was counterproductive. That was what sealed the deal. We believed that if he had taken a more rational approach a vaccine would have been developed many months sooner than it was. And that was why we convicted him. We convicted him because his failure to adopt a presidential, rational approach to finding a cure, in our opinion, caused the deaths of tens of thousands of people in Texas.
PK: What was wrong with the approach he took?
FP: The evidence was overwhelming. He did nothing to speed up finding a cure when he could have easily taken presidential actions that would have accelerated the process. And then, when we heard the evidence about the investments of his friends in those businesses that got government funds, at that point not only did he fail to accelerate finding a cure, he actually impeded finding a cure. All for the financial benefit of his friends and ultimately to assist in his failed re-election campaign.
PK: What approach should he have taken?
FP: The prosecution made out a very strong case for government appropriation of the intellectual property and research of the drug companies. The comparison to the Manhattan Project from World War II was very compelling. Sometimes it takes a war to get people to cooperate. But we believed COVID was a war too. So it was not much of a stretch. As explained to us, in the Manhattan Project, President Harry Truman ordered the government to get all of the best and brightest scientists together to develop a nuclear weapon. In fact, it was a multi-national cooperative effort, involving the U.S., Canada and Britain. There was no competition among nations, or competition among companies to race against each other to develop a bomb. It was a joint cooperative effort. The approach was not to compete against each other, or hide information from each other in an effort to be first to develop something. As explained to us, that would have led to duplicative and wasted effort, just as occurred with development of the vaccine for COVID. We heard how the drug companies were hiding critical findings from each other, and then in some cases, even publishing misleading information to throw their competitors off the track. All in an effort to reap the financial rewards that a patent recipient would receive when selling the vaccine. The evidence was overwhelming that instead of the traditional free-enterprise model, a model based on the collaborative approach that was the cornerstone to the Manhattan Project would have developed a cure much faster, thereby saving lives.
PK: What about all the evidence about open research used in the development of computer software?
FP: We also thought that was very convincing and relevant. The fact that shared approaches to the development of intellectual property had analogues outside of war was eye-opening. It was commercially practical as well. It was a bit abstract, but we hung in there when Richard Stallman talked about the “copyleft” philosophy of GNU and the Free Software Foundation. It made sense. Their philosophy is that by sharing developments and improvements the final product is made better and gets developed faster. It showed how a cooperative model produces robust results fast. And in the end, the fact that no one owns the intellectual property didn’t seem to lessen the incentive to improve the product. It just made the product better. They pointed to the company Red Hat Software as a very successful company that commercializes openly developed software. Clearly the same model could have been used for developing the vaccine for COVID. In fact, the government made a very strong case that since essentially the public funded the development of the COVID vaccine, it was wrong for private companies to profit. The profits should have been returned to the public.
PK: But that was software. The vaccine was not lines of code, it was an end product of a complicated biological process. What convinced you that “open sourcing” the research would have aided developing a cure more quickly?
FP: Again, we just listened to the evidence. There were those stories about how China was allegedly stealing information that had been developed by U.S. companies. And how the Trump administration played that up as being harmful to U.S. interests. But we believed that this was not a case of country versus country. It was a case of mankind fighting a virus that knew no political boundaries. If the U.S. had information that could help the Chinese, why hide it? And if the Chinese had data to help the Americans, it should have been shared. Politics got in the way of a cure. We firmly believed that.
PK: That raises an interesting question. Was it all Trump’s fault? As you point out, this problem crossed political boundaries. It was truly of global concern. Where was the United Nations or some other international body to help? That wasn’t Trump’s fault was it? Surely you could not hold him accountable for the lack of a global response.
FP: Trump’s team played that card and lost. Maybe that was in the part of the trial that was closed to the public for reasons of national security. There were no national security issues. What we learned was that Trump had ordered America’s defunding of the World Health Organization, basically rendering it helpless to coordinate finding a cure for COVID. In fact, most members of the jury thought that only added to his culpability. It made no sense to defund WHO during a world-wide pandemic. No sense at all unless his agenda was to kill people from those “shithole countries” as he called them, or to see to it that only certain hand-picked companies, picked by his hand, received funds. Remember we were asked to consider how would a prudent president in his position act. Certainly a prudent president would not defund the global organization designed to handle a pandemic. You couldn’t be more imprudent than that. He wanted to hold all the cards in his small hands. That is what the jury thought.
Then there was additional testimony about the fact that he dismantled the National Security Council’s committee that was charged with advising the President how to handle a pandemic. Not if a pandemic were to occur, but what to do when it occurred. Its occurrence was a given. And then, after COVID struck, he failed to re-convene that committee. You can’t get more imprudent than that.
PK: What about the position Trump took that by implementing Operation Warp Speed, he was doing all he could do to find a cure?
FP: The evidence was overwhelming. Operation Warp Speed had more in common with Star Trek than with helping to find a cure for COVID. It became clear that the companies that received funds from the government to develop a COVID vaccine were simply conduits whereby Trump was lining the pockets of his friends and supporters by increasing the value of stock in the companies his supporters had invested in.
PK: Such as what evidence?
FP: Take for instance the role of the Adelson’s in many of the companies that received funds from Warp Speed. The fact that Sheldon Adelson was a major investor in several of those companies through a series of shell companies was quite damning. We heard that Sheldon was one of Trump’s biggest fans and contributors; he made contributions in the hundreds of millions of dollars to Trump and to various Republican causes. It did not help Trump’s case that he tried to throw Adelson’s wife, Miriam, under the bus. We did not believe that she just happened to be an advisor to so many companies because she was a doctor. It was just not believable. We thought the fact that she had received his first Presidential Medal of Freedom award would have been enough payback to the Adelson’s. But apparently not. Did you know that hers was the first time the award had ever been purchased by a recipient? The evidence was that award cost $175 million dollars, which Sheldon Adelson contributed to the Trump election campaign and to other Republicans. Of course it just seemed normal at the time after Trump had finished awarding prior medals that evening to such worthy recipients as Elvis Presley (posthumously), Babe Ruth (posthumously) and Roger Staubach. Clearly all individuals who have made this country great, or at least as great as Miriam Adelson.
PK: So Operation Warp Speed wasn’t all it was cracked up to be?
FP: No, not at all. In fact, there was that memo that suggested WARP was an acronym for “We Are Republican Politicians.” Back to Adelson. After he and his wife cashed out some of the stock they owned in companies that received money under Warp Speed grants, he simply donated it back to Trump. So we believed Warp Speed had little to do with finding a cure for COVID. Really it was money laundering that took money from tax payer dollars in the treasury and funneled it through biotech companies, into the hands of their investors, who then donated it back to the Republican Party. Quite clever, but it led to the deaths of thousands of Texans.
PK: Wow, that is quite an indictment.
FP: Criminal homicide is a very serious crime. The whole set up behind Operation Warp Speed was criminal. It did nothing to bring about a cure quickly. All it did was motivate companies to create fancy PowerPoint presentations to justify why they should be the next recipient of billions of dollars to assist in finding a COVID cure. In the end, there was no accountability for the funds they received and that’s why it took so long to develop the vaccine. And that was by design, because those funds did not go to scientists, unless you consider Sheldon Addison’s wife, who is a doctor, to be a scientist.
PK: What should Trump have done instead of Operation Warp Speed? Were there examples of effective government action that you thought was convincing?
FP: Well we thought all that expert testimony about how the government can take over patents and use the intellectual property in a patent for a public purpose was very convincing. They said it was the equivalent of the government acquiring land for a public purpose under the power of eminent domain. They talked about how that is done with drugs, software, anti-terrorism tools. It seemed like the government has done it a lot recently, so it seemed pretty obvious that it should have been done with COVID. Remember the prosecution’s case was built on a simple theory: been there, done that. Same old, same old. COVID was an extreme emergency, but not the first time the government had been faced with an emergency. The prosecution’s case was that this time, Trump acted way out of line with how past presidents had acted in similar situations.
PK: Did you believe the testimony that if the government had acted more effectively, a vaccine could have been developed six months earlier?
FP: No. No one knew how much delay Trump caused. All that talk was speculation. Did Trump’s reliance on Operation Warp Speed cause one Texan or ten thousand Texans to die? Who knows. We convicted him based on his imprudent and self-serving actions. It is up to the judge to sentence him.
PK: What about the testimony of all the living presidents? That must have been pretty powerful stuff.
FP: It sure was. Let’s see. There was Jimmy Carter, George Bush, Barack Obama, and Bill Clinton. They each stated that they thought that Trump was irrational and imprudent. That was it. That was your gold standard for prudence.
PK: Eight weeks is a long time to listen to anything. I get restless if a movie goes past two hours. Was it tough sitting in the jury box that long?
FP: Yes. Several of us jurors talked about how it reminded us of the final episode of Seinfeld. The witnesses just kept coming and coming. The inventory of his imprudent acts was endless. Only the Soup Nazi was missing. Only Larry David scripting the testimony was missing.
PK: What did you think about Trump’s testimony that he should be forgiven for his actions because as a child his father insisted on calling him Donald in front of his friends, who then tormented him relentlessly by calling him “Donald Duck?”
FP: We found that irrelevant and not believable. No evidence was presented that he had any friends as a child.
PK: Thank you for your time and your civic duty.
Copyright 2020. Peter Kelman. All rights reserved.
Mr. Kelman is a practicing attorney and a professor of business law at Northeastern University. www.kelmanlaw.com.