A Fair Criminal Trial
After almost 40 years defending citizens accused of crimes in multiple states and federal courts, I offer some insights to those who think the former president was treated unfairly in his New York criminal case.
The criminal case charged the former president with violations of New York state criminal laws aimed at business owners who falsify important business records to cover up other crimes. These laws are not unique to the state of New York and can be found in other jurisdictions which passed them to deal with organized criminal enterprises that tried to hide their illegal activities by passing them through legitimate businesses. They were not passed to get former presidents.
The procedures used in the former president’s criminal prosecution were not put in place to get him but followed long established criminal trial procedure applicable to everyone accused of criminal law violations.
The charges were not made up out of whole cloth by Manhattan District Attorney Alvin Bragg. His investigators found the facts necessary to support the charges by interviewing witnesses employed by or allied with the former president and collecting corroborating documentary evidence. After being convinced that he had facts sufficient to convince a jury of the former president’s guilt beyond a reasonable doubt, Mr. Bragg’s office had to and did present the evidence and witness statements to a Grand Jury made up of everyday people, selected at random from Manhattan residents.
The Grand Jury was instructed on the law applicable to the evidence and deliberated in secret to reach a decision as to whether the evidence established probable cause to believe that the crimes were committed and that the former president probably committed them, either alone or in a conspiracy with others. The Grand Jury decided that the case should move forward, and the criminal charges were issued. There is nothing to suggest that the Grand Jury was manipulated in anyway by outside political influence.
After the charges were approved by the Grand Jury, the former president’s legal team was notified and an Initial Appearance before the court was scheduled. The defendant then made his first court appearance, bond to assure his presence at trial was set and pre-trial schedules for motions and other proceedings were established,
The District Attorney’s office then disclosed to the defense team all the evidence they had collected and named the witnesses it intended to call at trial. The District Attorney was required to turn over to the defense any evidence it had collected that might establish the defendant’s innocence or which might impact the credibility of the state’s witnesses. There is no indication that these procedures were not followed in this case.
Next, the defense team had the opportunity to file pre-trial motions. These could raise legal challenges and defenses to the charges, questions of the admissibility of the evidence or witnesses, whether pre-trial publicity or other factors might make it difficult or impossible for the defendant to receive a fair trial, challenges to the impartiality of the judge and anything else they wanted to bring to the court’s attention. The defense team filed numerous motions with supporting legal memoranda followed by responsive briefs by the prosecution and hearings where witnesses could testify, if needed. The trial judge ruled on each of those motions. Again, there is no indication that the defendant was treated unfairly in this process or that outside political influences dictated the court’s decisions.
Much was made about the so-called gag orders imposed on the defendant by the court. Again, these kinds of orders are not unusual. Defendants who threaten witnesses or try to influence prospective jurors by public statements are routinely instructed not to do so to preserve the integrity of the proceedings. The defendant’s violations of those orders brought multiple fines and further warnings from the judge not to continue his out of court statements and social media postings. The trial judge was extremely lenient with the defendant in this case. I had clients who said a whole lot less and ended up in jail awaiting trial.
After all the pre-trial issues were resolved, a jury needed to be selected. Both the prosecutors and defense lawyers helped craft a questionnaire sent to prospective jurors that was designed to root out any bias or opinions about the case or the parties which might deprive either side of a fair trial based upon the evidence. Those not excused due to their answers to the questionnaire, were then questioned by the judge, the prosecutors and the defense lawyers, to see if they harbored bias or had prejudged the case. Those who the defense or prosecution thought might not serve fairly were excused. Both sides agreed upon the final set of jurors selected to hear the evidence and decide the case. Again, there is no suggestion that the jurors were biased or influenced by political interference.
The trial consisted of opening statements by both the prosecution and defense outlining what they believe the evidence would show. The judge then gave opening instructions to the jurors on how they were to conduct themselves. The prosecution then called the witnesses to establish the facts of the case. After each witness testified for the prosecution, the defense was allowed to cross-examine the witness to test their recollection, discredit their credibility or expose their bias against the defendant.
The credibility of the witnesses was left up to the jurors. They are the sole determiners of who is to be believed. In this case, the prosecution corroborated the key parts of Michael Cohen’s testimony with that of other witnesses and documents. The jury believed that the defendant knew and was part of the conspiracy to falsify the business records to cover up the payment to Stormy Daniels to keep the story of her sexual encounter with the defendant from the public leading up to the 2016 presidential election.
After the prosecution was finished calling all its witnesses, the defense was able to call witnesses to establish whatever relevant contradictory evidence they had to offer. The defendant was permitted to testify in his own behalf but was not required to do so. The former president decided not to testify under oath to dispute any of the prosecution’s witnesses.
The prosecution was then afforded the opportunity to call rebuttal witnesses to contradict the proffered defense.
Once both sides were done calling witnesses, the prosecution and defense had one last opportunity to weigh in on the instructions the court was to give to the jury about the relevant legal principles that would govern their deliberations and decisions. There is no suggestion that the instructions were influenced by political considerations or pressure.
The trial court then gave each side the opportunity to make closing arguments. Both the defense and prosecution lawyers explained to the jury why they believed the evidence supported the defendant’s guilt or why it did not establish guilt beyond a reasonable doubt. The judge then read his instructions to the jurors, excused any alternates, and the jury retired to deliberate and reach its decisions.
The burden of proof rests with the prosecution which is required to convince the jury beyond a reasonable doubt that the defendant committed the charged violations. The defense did not have to prove the defendant was innocent. The jury was required to make its decisions unanimously, either guilty or not guilty. If the jurors could not reach a unanimous decision as to any charge, that charge could be the subject of another trial.
As we now know, the defendant former president was found guilty of all 34 charges brought against him. He is set to be sentenced on July 11th. At sentencing, the judge will consider the report prepared by the probation department, the defendant’s character and prior record, his remorse, his acceptance of responsibility and other factors. Clearly, the former president has not done himself any favors with his attacks on the court, the judge and his family, his disrespect for the rule of law and his unfounded claims of political interference by President Biden. He could be sentenced to probation, house arrest or incarceration for up to four years on each of the 34 charges. Sentences of incarceration can be imposed consecutively or concurrently.
The defendant then has the right to appeal to the intermediate appellate court in New York and, should he lose there, to the New York Court of Appeals. Appeals do not relitigate the credibility of the witnesses but are confined to the legal issues decided by the trial court. If the defendant’s appeal is successful, he can be retried, unless the appellate court determines the charges were not legally correct and should not have been brought in the first place.
The former president’s trial was just like any other criminal trial in state or federal court. All his protestations to the contrary, there is not one shred of evidence that it was unfair or influenced by outside forces orchestrated by President Biden or Democrats. Being held accountable for breaking the law hurts when one’s own behavior finally catches up with them.
