As Mr. Trump Faces a Jury of His Peers

Today prosecution and defense counsel will make their respective closing arguments to the jury in former President Donald Trump’s “hush money” trial.  Judge Juan Merchan will then instruct the jurors on the law applicable to the charges that have been levied against Mr. Trump and then dismiss the panel to deliberate and reach a verdict. 

In every jury trial, among the instructions that the Judge includes is the admonition that the jurors must render their verdict based upon the evidence admitted into the trial record and not upon the competing attorneys’ opening statements and closing arguments, which are not evidence.  Yet, as various legal media pundits following the trial have numbingly obsessed over the last several weeks about the potential impact of each piece of evidence upon the jury, I’ve been reminded of a study released at about the time I attended law school in the 1970s – I have no idea whether it was thereafter debunked or confirmed – that indicated that jurors actually make up their minds about a case based upon opposing counsels’ respective opening statements.

Since Jurors are also admonished by the Court not to speak about a case, even among themselves, until all the evidence is in, they themselves probably have no idea what their verdict will be.  Even so, I wouldn’t be a bit surprised – although we’ll never know – if Mr. Trump’s fate hasn’t already been determined.

That said, I was intrigued by an observation made by Attorney Ethan Greenberg in a May 20^th Wall Street Journal essay regarding whether the Court would include a jury instruction about “Lesser Included Offenses” (“LIOs”) in Mr. Trump’s case.  As all who care are aware, the charges brought against Mr. Trump for falsification of business records are classified as misdemeanors under New York state law.  Such offenses are only deemed felonies if the jury determines not only that Mr. Trump knowingly falsified his business records, but did so to hide another offense – in this case, a violation of campaign finance laws.  Mr. Greenberg noted in his piece that if no LIO instruction is given, it will be all or nothing for the prosecution and the defense – Mr. Trump will (unless there is a hung jury) either be acquitted or convicted of a felony.  However, if either side requests (or the Court itself elects to include) an LIO instruction, the jury will have an “off ramp” – it will have the ability to find Mr. Trump guilty of the misdemeanor of business record falsification without finding him guilty of the attendant felony of violating campaign finance law [i.e., if it chooses to conclude, for example, that Mr. Trump falsified his business records to hide his payment to Adult Film Actress Stephanie Clifford (a/k/a “Stormy Daniels”) for a non-criminal reason, such as avoiding embarrassment to Ms. Melania Trump].  It takes little discernment to surmise that an LIO instruction increases the odds that the prosecution will secure at least a misdemeanor conviction and avoid an outright acquittal – the latter which Mr. Greenberg called “a prosecutorial disaster” — but likewise increases the odds that the defense will avoid a felony conviction, thus enabling Mr. Trump to proclaim in the court of public opinion – as he did after he avoided being convicted in his second Senate impeachment trial despite the fact that a majority of the Senators had indeed voted to convict him — that the charges against him were a lot of hullaballoo about nothing.  A misdemeanor conviction would still potentially involve a prison sentence, but given the certainty that Mr. Trump will appeal any conviction, the prospect of jail time is probably something that the former president will be willing to worry about later. As this is typed, at least I am not aware whether Mr. Trump’s jury will be given an LIO instruction or not. 

(To state the obvious:  all of these Trump Toadies who were brought down to sit in the courtroom and then spew toxic waste outside afterward weren’t there to intimidate the jury – it takes a lot more than that bunch to intimidate a New Yorker – but to start the delegitimization of any ultimate guilty verdict in the alt-right media silo.)

As to how it will go:  I have had a number of friends express concern to me that although they believe that Mr. Trump is clearly guilty, the trial is so fraught with competing emotions that he will – as some believe was the case when O.J. Simpson was tried for the murder of his wife – ultimately be acquitted.  The requirement that a jury find evidence of guilt “beyond a reasonable doubt” in order to convict a criminal defendant is, and should be, a very high standard of proof; but prosecutors regularly achieve it.  On more than one occasion, I heard the senior partner in the firm I joined after law school – a renowned trial lawyer, son of a Wisconsin Supreme Court Justice, Fellow of the American College of Trial Lawyers, then a past president of the Wisconsin Bar Association, now decades-deceased — observe, “Every experienced trial lawyer will tell you that he’s had a case that he won that he should have lost, and a case that he lost that he should have won.” 

No one can tell what a jury will do.