Left: Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024. Merchan is presiding over Donald Trump’s hush money case in New York (AP Photo/Seth Wenig); Right: FILE – Former President Donald Trump is escorted to a courtroom, April 4, 2023, in New York (AP Photo/Mary Altaffer, File).
Donald Trump, 77, could be convicted in New York City on hush-money charges without the jury reaching a unanimous verdict about how, exactly, a crime was committed in the case.
The prospect of such an outcome has predictably resulted in substantial fanfare, attention, controversy, and complaints about what, exactly, the jury has to do with the evidence in — and whether or not the judge correctly stated the law with his instructions to the jury.
“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were,” the instructions delivered Wednesday by New York County Supreme Court Justice Juan Merchan read.
Understanding Merchan’s meaning requires going through the complex legal theory used by Manhattan District Attorney Alvin Bragg and his trial team on the case. This is essentially a three-step process.
The lone crime the defendant is actually charged with is 34 counts of New York Penal Law Section 175.10, which reads, in relevant part:
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Key for the purposes of the unanimity question is the language in the New York State felony statute regarding “an intent to commit another crime or to aid or conceal the commission thereof.” This is step one.
According to the jury instructions, and imputing this claim to the state, the judge says: “the other crime the defendant intended to commit, aid, or conceal is a violation of New York Election Law section 175-12.”
The second statute reads, in relevant part:
Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.
This second step is identified as the “predicate” in the instructions.
Judge Merchan goes on to explain how it works:
Under our law, a person is guilty of such a conspiracy when, with intent that conduct be performed that would promote or prevent the election of a person to public office by unlawful means, he or she agrees with one or more persons to engage in or cause the performance of such conduct.
After discussing how step one (§175.10) and step two (§175-12) interact with one another under the state’s theory of the prosecution, which receives the legal blessing of the court by mention of the theory’s inclusion in the jury instructions, the judge then offers three — and only three — specific “unlawful means” the jury can choose from.
“In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws,” the instructions read — this would be step three.
This is where confusion has set in about what the 12 jurors who will decide the former president’s fate are being asked to do.
“Judge Merchan just told the jury that they do not need unanimity to convict. 4 could agree on one crime, 4 on a different one, and the other 4 on another. He said he would treat 4-4-4 as a unanimous verdict,” Fox News personality John Roberts posted on X (formerly Twitter).
This understanding of the jury instructions prompted a corresponding outcry from several lawyers for being misleading.
“People keep harping on this but are missing the context,” national security lawyer Bradley P. Moss quote-posted minutes later. “They have to be unanimous that Trump falsified the records and did so with the intent to commit another crime. They do not have to be unanimous on what the other crime was: that’s the rule under NY law.”
As Roberts’ post was heavily shared, so were efforts to debunk it.
“Highly misleading,” attorney and podcast co-host Robert J. DeNault quote-posted. “It is a felony to falsify business records to coverup another crime. Merchan is saying jurors may each believe a different crime was covered up, but that would still be sufficient to unanimously agree a felony occurred.”
Georgia State University College of Law Professor Anthony Michael Kreis offered a more blunt assessment on X.
“Wrong,” Kreis wrote. “Unanimity to convict, but they may disagree about the underlying theory of criminality.”
Roberts later clarified his post: “All 12 need unanimity that Trump committed a crime. But the underlying unlawful means is a smorgasbord they can pick from – and they don’t all need to agree on what it was.”
More Law&Crime coverage: ‘Not going to help the jury’: Evidentiary hearing in Trump hush-money case highlights pivotal issue for defense on hotly-disputed campaign finance law allegations
Part of the confusion here likely stems from a late-game change by the prosecution. Initially, the state aimed to show that §175.10 was the predicate crime — using §175-12, FECA, and tax crimes as the ways in which the misdemeanor became a felony. There, jurors would have been allowed to pick and choose from among those three options. But, that’s out the window now.
Instead, the prosecutors and the judge have transmogrified the state’s theory into the three-step process outlined above — essentially putting all the eggs in the §175-12 basket and using FECA, other business records falsification, and tax crimes as the “unlawful means” required by the predicate misdemeanor. The instructions say the jury does not need to unanimously agree on which alleged crime of those three outlined options made up those “unlawful means.”
While the mechanics of the unanimity question are complex, they are not complicated or novel. Prosecutors have long offered alternative theories of how any given crime can be committed. Juries often convict without necessarily agreeing on, say, what murder weapon was used in a case. Or, in the case of a felony murder conviction, for instance, jurors might not blame the same murderer-in-fact.
Some legal experts, however, say something may be different about the present case due to the disparate nature of the theories.
An appellate lawyer who posts under the handle @legalnerd on X highlighted a Sixth Circuit Court of Appeals case that anticipates exceptions to the general rule and says: “a special unanimity instruction may be warranted if (1) the evidence is exceptionally complex or the alternative specifications are contradictory or unrelated, (2) there is a variance between indictment and the proof at trial, or (3) there is risk of jury confusion.”
New York State, of course, is part of the Second District Court of Appeals — but the language cited above, or similar framings from other jurisdictions, might very well find itself cited in a potential appeal.
Jurors, for their part, appeared confused by at least some aspect of the instructions. A second note sent to the court during deliberations requested the judge to read the instructions back to them again, according to a report by Just Security fellow Adam Klasfeld.
The judge asks whether the jurors want to review the entirety of the instructions, and one juror nods her head as if to say, “Yes.”
Still, none has audibly responded, and the judge notes they do not need to immediately answer.
— Adam Klasfeld (@KlasfeldReports) May 29, 2024
This request prompted the judge to send the jury home for the evening. Deliberations will begin again at 9:30 a.m. on Thursday.
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