With jury deliberations underway in the trial of former President Donald Trump for allegedly falsifying business records, legal experts across the country remain appalled by Judge Juan Merchan's seeming attempts to prop up the prosecution, in part by all but stifling the defense's objections.
The clown show continued with Merchan's instructions to the jury and subsequent responses to notes from the jury as it deliberates.
Related: Here Are the Jury Instructions in Trump's Manhattan Trial
As George Washington Law School professor and TV commentator Jonathan Turley proffered, "The deliberations could become a legal version of a canned hunt, where the prey is trapped in a cage or fenced-in areas to be dispatched." With due respect to Professor Turley, the case has been a canned hunt from the moment the charges against Trump were filed.
Turley began by noting the trial's closing arguments.
Around the country, it is standard for the government to go first with a closing to allow the defense to respond. The government is then given the privilege of a rebuttal after the defense rests.
In New York, the defense must go first, giving the government free rein over its closing with no risk of contradiction from the defense. With the exception of objections, any abusive or improper arguments are left to the judge to address.
And that judge is Merchan, who, according to federal election records, contributed to the Biden campaign, as well as to the Progressive Turnout Project and Stop Republicans. While Merchan's contributions were minimal, they clearly painted a picture of the man's political predisposition.
As to the reality that abusive or improper arguments have been left to Merchan to address, Turley wrote:
In the case of Judge Merchan ... protection [for Trump] was all but absent as the prosecution engaged in flagrant violations from offering testimony on unestablished facts to directly contradicting prior instructions.
[...]
Going into the deliberations, the court allowed the jury to be told repeatedly that there were federal campaign violations committed by Trump. That is not true.
Putting aside that the federal government found no basis to impose a civil fine, let alone bring a criminal charge, the court barred a legal expert who could have shown that no such violation occurred.
The jury does not know that. Instead, the judge allowed them to be repeatedly told a false fact that could make it difficult for anyone to acquit.
Merchan's jury instructions "went in for the kill and turned the jury deliberations into a canned hunt," wrote Turley, as he described three "curious aspects" of the deliberation (emphasis, mine).
First, the judge has ruled that the jury does not have to agree on what actually occurred in the case. Merchan ruled that the government had vaguely referenced three possible crimes that constitute the “unlawful means” used to influence the election: a federal election violation, the falsification of business records, and a tax violation.
The jurors were told that they could split on what occurred, with four jurors accepting each of the three possible crimes in a 4-4-4 split. The court would still consider that a unanimous verdict so long as they agree that it was in furtherance of some crime.
Second, the judge said that he would instruct the jury on the law but then omitted the key elements that established there was no federal campaign violation. ... Moreover, even if Trump’s legal settlement money could be viewed as a federal campaign contribution, it could not have been part of a conspiracy to influence the election since any reporting of a contribution would have had to occur after the election.
Third, not only can the jury disagree as to what occurred, but one of the three crimes is so circular as to produce vertigo in the jury room. The prosecutors zapped a dead misdemeanor back into life by claiming a violation under New York’s election law 17-152.
The argument is that the crime was committed to further another crime as an unlawful means to influence the election. However, that other crime can be the falsification of business records. So the jury (or some jurors, at least) could find that some documents were falsified as an unlawful means of falsifying other documents.
I'm not an attorney, but I am a reasonably intelligent person, and I can't visualize 12 jurors coming to a unanimous agreement — other than for political reasons — based on what you just read.
Speaking of the jurors, two of them are attorneys, which makes for interesting speculation.
One or both could reject a conviction based on any number of reasons, including that the prosecution didn't prove its case beyond a reasonable doubt, or even a legal technicality. On the other hand, lawyers who work for liberal New York law firms might very well be inclined to "bring home a guilty verdict for the firm."
Turley emphasized that Merchan is allowing conviction based on a “general intent” to defraud “any person or entity,” and that while the judge has "largely stuck to the standard jury instructions," the Trump case is "anything but standard." With an ambiguous claim of “influencing” an election, Turley said, "a general intent instruction without better definition to this case can be an invitation for bias."
No kidding? Professor, the "bias" ship sailed before the trial began.
Given all of the above, Turley believes an acquittal is virtually impossible, leaving either a hung jury or a conviction. If the jury reports that it can't make a decision, Merchan could instruct jurors to try again to reach a verdict. If they still can't, he would be forced to declare a mistrial.
Prosecutors would then have to decide whether they want to retry the case. I'll go out on a safe limb and bet that's exactly what they would do. After all, keeping Trump in his "cage" has been the objective from the beginning.
Related:
