To Convict Trump Or Not To Convict Him, That Is The Question

To Convict Trump Or Not To Convict Him, That Is The Question - Top 3 Takeaways – May 30th, 2024    

1. To convict Donald Trump or not to convict Donald Trump, that is the question. The question that’s before each of the twelve jurors in Trump’s New York State criminal case which was handed to the jury following the highly important instructions from Judge Merchan yesterday. None of us knows what each of the jurors is thinking and thus none of us knows exactly how this case is going to end. We do know when it’s going to end. Within 55 days. That’s an obvious statement I know, but did you know that 55 days is the longest a jury is known to have deliberated before reaching a verdict (in American history)? The record length jury deliberation occurred in Oakland, California in 2003 involving a case with police officers accused of corruption. The trial resulted in the officers being acquitted on eight counts with a hung jury on 27 other charges. That’s instructive to mention for another reason...speculation regarding the likelihood of outcomes based upon the length of a jury’s deliberations. There’s an often advanced narrative that the longer a jury deliberates the more likely a jury is to convict. Just as that was not the case in the record setting example out of Oakland, there’s no empirical evidence to suggest outcomes based on the length of deliberations. Here are examples of the length of jury deliberations before reaching verdicts in several high-profile criminal cases. It took a jury ten hours to convict Derek Chauvin for the murder of George Floyd. It took a jury only four hours to acquit O.J. Simpson of murder. It took a jury seven days to convict Scott Peterson of murder. It took a jury 11 hours to acquit Casey Anthony of murder. Similarly, in another Florida case, George Zimmerman was acquitted of Trayvon Martin’s death after about 17 hours of jury deliberation. The number of charges, the complexity of the case, the evidence that’s available to review, and the composition of the jury all factor into variables that can work in unpredictable ways. For that reason, no one knows what the jury’s verdict will be, until the jury renders it. There's one dynamic I’ve highlighted as an especially interesting one with this jury that I believe has the potential to weigh heavily into the outcome... There are two attorneys on the jury. The first and perhaps most interesting dynamic is who became the foreman of the jury. I could envision Feats of Strength becoming a determining factor with two attorneys involved (rumor has it neither ended up being the foreman). The other notion pertains to the potential impact they could have in guiding other jurors. I’ve never known an attorney who didn’t like to talk and there’s a lot to talk about and to talk through in this case. Based upon their findings of facts, and whether the two attorneys agree on those findings of facts, one could imagine one or both playing a role in seeking to steer a jury. Speaking of steering a jury... 
2. The jury instructions. I’ve covered a lot of cases over the past 26 years. I’ve never covered a case with as much discussion about the importance of jury instructions as this one. Some of that is due to the unprecedented nature of the case. Much of that is due to the impact many on the right have felt that Judge Merchan, a Biden campaign donor whose daughter raises money for Democrat candidates, has had up to this point by placing his thumb on the scale of this case. For the majority of the hour the instructions were delivered they ranged from the standard: You are the judges of the facts and you are responsible for deciding whether the defendant is guilty or not guilty. And The defendant is not required to prove that he is not guilty. In fact, the defendant is not required to prove or disprove anything. If people satisfy their burden of proof you must find the defendant guilty. The people must prove beyond a reasonable doubt every element of the crime, including the defendant is the person who committed that crime. The burden of proof never shifts from the people to the defendant. If you are not convinced beyond a reasonable doubt of the charged crime, you must find the defendant not guilty. To the specifically instructive in this case: (Jurors can disregard a witness’ testimony if they) find any witness has intentionally testified falsely to any fact (either the entire testimony or the only the portions found to be false). Under our law Michael Cohen is an accomplice. Even if you find the testimony of Michael Cohen to be believable, you may not convict the defendant solely upon that testimony unless you also find it’s corroborated by other evidence. It was about at this point that the instructions were looking to be presented in an exceedingly fair and balanced way – albeit in an extraordinarily deliberate way. But then there was a series of bombshell instructions that came at the end. All throughout the five weeks the trial was taking place a question that repeatedly came to the forefront was what was the crime that Donald Trump was attempting to coverup? All 34 charges against Trump were misdemeanors that had run well past the statute of limitations. The prosecution needed to prove that Trump committed those alleged crimes in the furtherance of another crime in order to charge felonies. During the marathon closing arguments the prosecution laid out three possibilities. 1) That Trump was attempting to engage in election interference in the 2016 election (Violations of the Federal Election Campaign Act – which federal authorities investigated and determined no crime had been committed) 2) That Trump conspired to falsify business records 3) That Trump was committing a tax crime with the scheme devised to payback Michael Cohen (ironically, he paid more in taxes than he would have if the reimbursement payments to Cohen hadn’t been “grossed up”).  
3. Remarkably Judge Merchan accepted the premise of the prosecution's options, which were never presented as evidence to the jury and with the opportunity for the Trump defense to respond to them. More remarkably still his jury instruction was that each juror only had to find Trump guilty of one of the three possibilities and that the jury didn’t have to agree on which of three he may be guilty of having done. In other words, as long as 12 jurors think Trump did at least one of the three, than that would be considered as a unanimous verdict. That was the instruction that came not just with a thumb on the scale, but perhaps a big toe or two. At various points in this process, I’ve thought that Trump would most likely be convicted (following jury selection), to thinking that there would perhaps be a hung jury (following the Stormy Daniels testimony) to thinking that there just might be an acquittal (following Michael Cohen’s testimony). Right now, I’m not sure what to think which is just as well because none of us know what the jurors are thinking. With that said there’s a reasonable chance that today’s the day we’ll know...or at least sometime within the next 55 days.