The Verdict Is In
Even though many expected to hear of a guilty verdict in the case of New York v. Trump yesterday, it was still a sobering moment. I had said earlier in the week that a verdict before Friday, regardless of what the verdict was, would not be a fair one because of the speed with which it came in a nuanced case.
I did not read the charging documents, have not studied New York law, and did not trust the reporting from the courtroom. Without cameras in the courtroom, which have been routine in this state for more than 40 years, we can’t really know the dynamics of what happened during the trial itself. But I am a licensed attorney and did practice law full time for 10 years, so I do have a few thoughts on the end of the trial…because the things that concern me are tied to procedure and policy, not evidence or rulings.
The prosecution goes first in its closing argument, summarizing what it believes the evidence shows. It’s the prosecution’s burden of proof; that’s why the prosecution goes first in the case, and the appropriately-named defense…defends. So at the end of the trial, the prosecution sums up their case, the defense then defends, and the prosecution gets the last word with rebuttal summation. But not here…the defense had to defend against something that had not yet happened. Those arguments to the jury are not evidence, but they are important. Having the defense goes first is something I’ve frankly never heard of.
The closing arguments are also not supposed to include items not in evidence before the jury. When a lawyer, on either side, starts bringing in new material or, as it is said, “argues facts not in evidence,” the other side objects and the judge is to disallow the improper statement. This includes statements that run contrary to the jury instructions on the law. This judge seemingly limited the defense, but allowed the prosecution—which went second, free from rebuttal from the defense—to make all manner of statements not in evidence.
Then there’s the jury instructions. The judge reads them into the record, then the jury is handed the official instructions to take back into the jury room during deliberations to study. Those instructions contain specific details about what the law is and the elements that must be proven. The judge read all 55 pages…but then refused to allow the jury to have the document to review. They had to go from memory about what the standard was they were applying. Again, never heard of that.
Major mistakes like that can lead to a conviction being thrown out on appeal, “reversible error,” it’s called. Many believe this decision will be overturned on appeal. But that takes months and is far from a certainty.
In the meantime, with barely five months before a presidential election, one side can call the other side’s nominee a convicted felon…which makes you wonder about whether justice had anything to do with the trial.
