What do you get when you cross Alice’s trial with Kafka’s The Trial? Judge Merchan charging the NY jury in the Trump case, that’s what
This afternoon I was trying to explain to a friend what’s been going on today in the NY “hush money” trial and why I’m so perturbed about it.
It’s not easy to capture in its full surreal horror, although Lewis Carroll and Franz Kafka have given similar trials a go. But what I told my friend was something like this: The judge has told the jury they don’t have to agree on the elements of the supposed crime that elevated at most a misdemeanor barred by the statute of limitations into a felony that could be tried. They don’t even have to agree on what that crime might be. They just have to figure there was some sort of crime and Trump was some sort of guilty. And oh, by the way, in their summation Trump’s defense attorneys can’t criticize this monstrous ruling by the bench.
Ghastly. Outrageous. But hey, Merchan has the power and he’s going to use it. The left isn’t even pretending to play by the rules. They know there is no check on them from the MSM or leftist lawyers, who will say anything to get Trump.
So in the end it rests on the wisdom of the American public to see through all of this. Or perhaps on the shoulders of one juror with integrity, if there is such a thing in this case.
As Ace writes:
The prosecution wants a Choose Your Own Adventure style verdict — jurors can pick from three offered predicate crimes. And they don’t even have to agree on which of the three possibilities they’re convicting Trump under; five jurors can pick Possible Predicate #1, four can pick Possible Predicate #2, two can pick Possible Predicate #3, and one can even make up his own predicate. As long as they all say that some predicate is present, they can convict.
This is against the law. The Supreme Court has ruled that juries must be unanimous about all elements of a crime to convict.
Now we know why the crime that supposedly occurred was never specified: it didn’t have to be, as long as a compliant judge was willing to prostitute himself and twist the law into something unrecognizable, and a New York jury would take his word for it that they could pretty much wing it and give vent to their imaginings about the evil crimes Trump must have committed or intended to commit.
For what it’s worth, here’s information about the defense’s closing arguments, which have been completed. This is an unusual order of things; ordinarily the prosecution goes first with its closing arguments and the defense gets to go last, although the prosecution gets to rebut briefly at the end.
Newsweek writes that “It is common practice in criminal trials for prosecutors to summarize their closing arguments last … .” Actually, it’s not common at all for the prosecution to give its closing arguments last. What does Newsweek mean by “summarize”? Do they mean the rebuttal? This is deliberately vague. The rest of the article is filled with quotes from attorneys saying that Trump is so incredibly stupid and ignorant to expect to have the last word. But this is, once again, deliberately confusing the closing argument order with the final rebuttal.
This is rather obviously what Trump was referring to – the reversal in this trial of the usual order for closing arguments themselves. Here’s the usual order:
Under the Sixth Amendment, defendants have a right to present a defense. They are also entitled to give a closing argument. Usually, the prosecution first makes a closing argument, then the defense attorney. The prosecutor, who has the burden of proof, frequently gets the chance to respond to the defense’s final argument.
So yes, the prosecution ordinarily gets a chance to be last, but not for its main closing argument – it’s just an opportunity to rebut what the defense has said. In the Trump trial, with the defense going first for their main closing arguments and then the prosecution last for their main closing arguments, will Trump’s lawyers get a chance to rebut? Apparently not.
I’m curious if there are any trial lawyers out there who can say how often it is that the prosecution goes first for the main closing argument, and how it is handled and why it would happen.
ADDENDUM:
You can read more on the subject here (from Scott Johnson) and here (from Byron York).
And here’s Jonathan Turley. His whole Twitter (“X”) page is of interest, but here’s one tweet from it:
…The problem is that, under New York law, the defense was forced to go first unlike most jurisdictions. That denied the defense the change to respond to such sweeping claims. It is huge advantage to the prosecution.
— Jonathan Turley (@JonathanTurley) May 28, 2024
I guess the anti-Trump lawyers quoted in that Newsweek piece would say Turley is stupid and ignorant, too.
Huh. I have this memory of my high school law class teacher saying that prosecution goes first at opening, and last at closing. It was stated as a universal procedure.
I can see the conversations over drinks at the club: “Don’t worry if you’re overturned. No one’s going to sanction you. And we’re looking at a Judge Judy type show, with a judge who gets a little over the top . . . .”
The general rule is that the party with the burden of proof (which in a criminal trial is the state/prosecution) has the first word at trial, viz., opening statement and the last word, i.e. in summation/closing argument. Thus, the defendant follows the prosecution in opening and preceeds the prosecution in summation. At least that’s the rule in PA as well as federal proceedings in which I have participated. It is possible that other venues follow other procedures, although I am unaware of any that do. Of course, in the farce that is going on in Merchan’s courtroom, following rules of procedure, evidence, legal precedent and pretty much anything that might impede the march toward the desired conclusion of the DA is ignored, flauted or overruled. God forgive me, I hate these democrats.
As do I Steve. They are a loathsome bunch.
My understanding is that the prosecution in most jurisdictions gives its closing argument first as well as giving the initial opening argument 1st, but that the prosecution does get a chance at rebuttal as the last word. Turley seemed to imply that is the normal procedure except in New York. It wouldn’t be a problem if the defense gets a rebuttal period, but for some reason- maybe normal NY court procedure, that isn’t happening here. Its a real problem is the judge lets the prosecution make the arguments Turley has described- things without evidentiary support when the government made its case, and the defense just gets to say nothing about it.
If Trump is convicted and I am assuming all 12 members of the jury hate his guts and have for 8 years, it will get overturned the first time it comes across the desk of an honest judge, but that might require a federal court since the NY courts are likely all politically corrupt like Merchan.
They put weissenberg in prison because he wouldnt turn on trump connahey made mincemeat of cohens claims as did costello
I dont think the judges in berezovdkys
case were this biased
Should by some miracle, the Great Orange Whale returns as POTUS, I fully support his using the massive power of the office to destroy ALL his enemies in retaliation for what they have done. Put the judge and his daughter in adjacent cells at Gitmo. Well maybe not that. Yet.
The prosecution is essentially testifying to unproven facts, the da in law and order would never do that, sarc
Im reminded of when maurice evans tried heston in the planet of the apes
Now steinglass is lying about hope hick
s
Istead of pointing out how cohen messed things up
This will not be forgotten!
New York state criminal procedure gives the final closing argument to the prosecution.
I believe that a hung jury would be in the Democrats interest. They could retry the case ( they aren’t concerned about legality obviously) and keep Trump tied up and under gag. I assume the Merchan would still be the judge, this is what I believe though I’m very weak on judicial procedure.
I still believe Trump likes to fight for the sake of fighting, which his opponents have no clue how to deal with this attitude.
George H Avery, PhD:
Yes, that’s what Turley wrote. The point, however, is that NY is unusual (perhaps even singular??) in that respect and it favors the prosecution. What’s more, it seems that in his closing argument this prosecutor introduced facts not previously in evidence, which is a no-no and gives the defense no opportunity to counter the assertions.
Want to know my opinion on Human Law & humans ‘Beloved‘ dogma of the Rule of law? 😉
Will keep it short and just do a Wikipedia quote attributed to Edmund Burke:
@Karmi:Want to know my opinion on Human Law & humans ‘Beloved‘ dogma of the Rule of law?
I’ve been trying to follow what you’ve been saying on this. Does it just boil down to “laws don’t execute themselves, but depend on competent people applying them in good faith” or are you saying more than that?
If you’re saying just what I suggested I don’t think anyone disagrees, it’s just that the phrase “rule of law” is a shorthand for “laws don’t execute themselves, but depend on competent people applying them in good faith”.
One of the principles underlying English common law is that the law has always existed and it is the jurist’s task to discover what that law is (see quote from Blackstone below). Jurists can be mistaken but that just means they got it wrong–somewhat like how a mathematician might make a mistake in a proof and it might go missed, for perhaps years. This is a convenient fiction but it did allow people to non-violently settle differences for hundreds of years.
Anyway, if you mean something different from what I stated, can you expand a little on what you mean?
Incidentally the word “artificial” did not carry a pejorative connotation in Burke’s time, it simply meant “made by human skill”.
“…it favors the prosecution…”
If the prosecution wishes to prosecute, which Bragg obviously does in this case.
Most other, violent, criminal cases, meh….
Marchan delenda est. The more unjustly they treat Trump, the harsher should be the consequences.
“Want to know my opinion on Human Law & humans ‘Beloved‘ dogma of the Rule of law?” Karmi
No.
Rebuttal is the fix to the fundamental disadvantage in a debate of being the party that presents its argument first. Short of moving the second party out of the room while party #1 argues, the second party gets to construct its argument with full knowledge of every argument the first party made. This imbalance can be mostly adjusted by allowing the first party the right to the sole rebuttal with the restriction that rebuttal is exactly that- arguments directly addressing the items raised by the second party.
There were a lot of so-called lawyers on twitter and elsewhere today who didn’t seem to understand what the purpose of a rebuttal actually is, and mocked the idea that Trump’s defense should have had the right to one by dishonestly pointing out that in most of the U.S. only the prosecution gets the right of rebuttal, either erroneously or dishonestly omitting the fact that in those other states the prosecution is the party that goes first.
There are a lot cretins and liars in the legal profession these days, apparently.
@ Niketas > “And it hath been an antient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.”
Whence follows Chesterton’s famous observation on fences:
https://fs.blog/chestertons-fence/
PS There is a lot of good advice in that post, about second-order thinking and not changing things until you know why they exist the way they do, primarily directed toward business executives at the end.
And to make the point clear- the party arguing second gets its rebuttal as part of its main argument precisely because they got to listen to party#1’s argument. It is only fair to offer rebuttal to the first party. That was what was missing in today’s trial- the prosecution got to address every single point raised by the defense, but the defense got no chance at all to address the prosecution’s arguments except by accident.
@ Yancey > “There are a lot cretins and liars in the legal profession these days,”
There have always been such, which is why lawyers have a bad reputation.
There are also many fine, honest, upright ones, who don’t appreciate the ones giving them a bad reputation.
What seems to me to be different in these days is that, formerly, the bad ones were excoriated by the public, rebuked by the judiciary, and disapproved of by the academics; now they are celebrated and enabled instead.
(Why yes, I did have my day off today; how did you guess?)
“Biden” seems to be tripping over “his” vorpal sword….
‘ “A Pervasive Fear Has Settled In”: Dems Are Absolutely Freaking Out Over Biden’
https://www.zerohedge.com/political/pervasive-fear-has-settled-dems-are-absolutely-freaking-out-over-biden
Not to worry, though (it’s all probably a manufactured hysteria put-up piece).
To give the proles the wrong idea.
Send ’em barking up the wrong tree.
Just another Weapon of Mass Distraction.
Because…”We’ll do ANYTHING and EVERYTHING to SAVE OUR DEAR, BELOVED DEMOCRACY”…
(And don’t you fergit it…!)
File under: Fortification chic.
OT
Please read this about the pier in Gaza. The leadership of this country is infantile.
https://cdrsalamander.substack.com/p/from-abbey-gate-to-gaza?utm_source=profile&utm_medium=reader2
I was an active trial lawyer for almost 50 years and never in that time did the defense go first in giving their closing. Given that the prosecution/plaintiff has the burden of proof, they should first be required to make their case on closing, just as they do in offering evidence during that phase of the trial. Among the myriad reversible errors in this case, the coup de grace was when the judge refused to let the defense offer its expert on campaign finance law testify and yet the prosecution offers as its lynch pin the argument that the felony arises out of Trump’s violation of that law.
Not to worry, Richard. The WHOLE thing was virtue signaling on a global scale.
High drama.
Grandstanding.
(Besides, what better way for “Biden” to demonstrate “his” profound care for Gazans—his unparalleled humanity—on the one hand, while EMPHASIZING that Benyamin Netanyahu—that ISRAEL—is waging a crueler than cruel, unconscionable, Nazi-like WAR OF STARVATION on the poor, innocent population of Gaza, on the elderly, on women, on children—AT A LEVEL of COLLECTIVE PUNISHMENT that the world has not witnessed for generations???? …oh, um, did I mention that there’s an election in November? Or that “Biden” is committed to the safety and security of the Jewish State, which has never had a better friend than…Joseph Robinette Biden?)
All of which virtue signaling gave the green light to the ICC or ICJ or UN or WHO or whatever they want to call themselves…and which ALSO, by the way, gave “Biden” a grand opportunity to CRITICIZE the ICC or ICJ or…. for their decision.
(Win-Win for Team “Biden”!!)
File under: “The play’s the thing / Wherein I’ll catch the optics of the thing”….
“Among the myriad reversible errors in this case…”
Um, they were most definitely NOT errors.
Maybe you meant INTENTIONAL gross violations of the law?
(Or perhaps grotesque, Busby-Berkeleyesque-choreographed violations of the law….)
…Unless you meant errors potentially reversible on appeal—in NY??!—but then, of course, the damage has already done, the process being the punishment, etc., etc….
Yep, character assassination at its very finest…
Yes they whitewashed all of cohens crimes and screwups and the hanging judge let him do that lying about hope hicks connahey
et al
There is no vekakte crime in this case except depriving the people of the state of new york ghe justice they need (i could use the spanish cognate)
Yes depriving the defense is a 6th amendement violation is it not dejure or defacto
Niketas Choniates:
Hence my often sarc/ – ‘It should be a Capital Crime for humans to create Laws.’
Take Moses for an example (NOTE: I am not a follower of any religion) – one of Ten Laws is “Thou shalt not kill”. You know how many laws humans make about killing?
• The road to hell is paved with good intentions
• It is better that ten guilty persons escape than that one innocent suffer.
Am not even a novice on the U.S. Constitution, but the Guarantee Clause – ‘The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ’
Not just Republicans/Conservatives; however, Republicans/Conservatives are also BIG Govt promoters. Distracting the Federal Govt from its Constitutional duty to protect us from foreign enemies with nonstop creation of Law after Law after Law, and the support needed for such a … never-mind—point is Republicans/Conservatives are just as responsible for our BIG Govt as the Democrats are. American youth are saddled w/ a nightmare…
Edmund Burke:
Look around, and know that that simple statement it true…
None of you are wrong about the utter corruption of this trial. It’s disgusting. It’s actually making me revisit whether I’m going to vote for Trump. It has become so important to get these corrupt hacks the heck away from power that maybe it is better to roll the dice on another four years of Trumpian chaos and what comes after that.
That said, the real issue here is about how this will play to the general public, and I’m not so sure it will help Trump. It will put fire in the belly of his supporters and maybe motivate people like me to reluctantly pull the lever for him, but his supporters and people like me voted for him in 2020.
The problem is that you almost have to have a J.D. to understand why this trial is so corrupt. (And even if you do, there are plenty of talking head J.D.’s on TV and the Internet who will assure you that all is well and the evidence of Trump’s guilt is overwhelming.) We’re arguing here about whether the defense or the prosecution gives their summation first. We’re arguing about the sufficiency of the indictment and whether Stormy Daniels’ testimony was more probative than prejudicial. To non-lawyers and non-political obsessives, their eyes are just going to glaze over.
I’m afraid it’s all going to be about the show and the narrative. I fear the relevant questions to most of the public are going to be: did man do a bad thing and is he being held accountable for it?
Did the man do a bad thing? I know there are still some around here who insist that Stormy Daniels is lying and that there was no affair. Bless your hearts. She might well be lying, I don’t know. But for the public, the issue is going to come down to this – is Trump the kind of person who would have an affair with a porn star while his wife is recovering from childbirth? Based on his personal history and behavior, only the most committed Trumper would say, “no, there is no way that he would ever do a thing like that.”
Is it bad to buy an NDA from your purported mistress to keep her from going public about alleged infidelity during a campaign? It’s not illegal. It’s not a campaign expense, but it’s not good either.
And once you get there, it is simply going to look, as my blue collar friends said, that Trump is simply being held accountable for his BS. In short, Alvin Bragg and his team may have out show-businessed the king of show business. Legal system be damned, they’re more concerned with getting Trump, but I think it might very well work.
“But they would do this to any Republican.” BS. They would try, but the “man held accountable for the bad things he does” narrative doesn’t work unless you have someone like Trump who regularly skirts right to the edge of illegality, doing things that are bad or wrong, even if they’re not illegal or criminal.
And the game goes on. Trump gets the adulation and attention that he wants. Democrats get the power that they want. The chumps are GOP base that keeps supporting Trump over other more capable and more electable candidates.
Thou shall not murder steal covet thy neighbors wife or property are those artificial too enough with this sub rousseau routine
When we decided we were arrogant enough this didnt apres the deluge,
And Edmunk burke tried to impeach an innocent man warren hastings on the rumors of a vengeful man phillip janes
He failed but not before it broke hastin
gs hastings crime was carrying out the second mysore war in india successfully well cetainly better than cornwallis did with the colonies
What hillary did was illegal corrupting the intelligence agency with garbage laundering russian dezinforma destroying documents under subpoena accepting bribes from oligarchs warlords and terrorists lootinv haiti and nigeria by proxy what was that about illegality
Of course mark elias was her accomplice and he fixed the ballots to put this strawman in power head on a swivel face front
Ten guilty men can cause a lot of damage look at the major cities and see 19 men caused 3000 dead weve let perhaps hundreds of cells in the two million gotaways
That might be considered a crime you think
I wonder if Merchan will do the late night circuit as an “American hero” after he imprisons Trump for the rest of his natural life and “saves democracy”? How soon until the first school or building is named/renamed in honor of the judge?
Yes i know burkes part in condemming the french revolution
@Bauxite:“But they would do this to any Republican.” BS. They would try, but the “man held accountable for the bad things he does” narrative doesn’t work unless you have someone like Trump
Rick Perry, Ted Stevens. Just needed sufficiently motivated prosecutors. Both convicted. Took two years to clear Perry, indicted in Harris County, and a year to clear Stevens, indicted by a federal grand jury.
There are lots of people in Congress, and perhaps one in the Presidency, who’ve done worse than Trump and sleep soundly at night because they know their friends in the justice system are covering for them.
They can create the narrative they want about any GOP candidate who’s not Trump because those people are too obscure. Paramount portrayed DeSantis as a homosexual rapist in 2002. If he was the candidate we’d be seeing the “me too” allegations in the media about now, and that narrative would have been in place already, with millions of people having those allegations as their first idea of who DeSantis is.
You need to wake up. This is not about Trump. You live in a banana republic and you have for some time.
supporting Trump over other more capable and more electable candidates
It’s not 1980 and there aren’t electable GOP candidates, because Dems know how to game the voting in the precincts that swing the Electoral College thanks to the rule changes they pushed through in 2020. All the media “flop sweat” that right-leaning media is crowing about is the Inner Party telling the Outer Party where and how they need to “fortify”.
CC™ is back pursuing The Great Orange Whale.
Bauxite,
You are incredibly naive. This will be the standard operating procedure for any prominent Republican from now on if it succeeds in this trial.
Miguel cervantes:
Excellent point! That is now the Republican party’s mentality, i.e., be sure to convict that one innocent man in order to make sure those “Ten guilty men” get convicted.
A slight tweak on the old Blackstone’s ratio – ‘It is better that ten guilty persons escape than that one innocent suffer‘ – but it is 2024 and the Republican party has very modern views on ‘Da Law now…
And they used william allen a rank degenerate with his nc 17 fbi handler to falsify records against stevens
Whose innocent chauvin the six people who committed suicide in the dc gulag
Merchants is impossibly clueless. Or he has been assured that the fix is in at the appeal level(s).
Not sure “clueless” is the right word here…
(You know what they say about being “kind to the cruel”…)
+ Bonus:
“BIDEN TEAM CONFIRMS: Trump NYC Trial Was a Biden Produced Political Show Trial”—
https://pjmedia.com/victoria-taft/2024/05/28/the-beginning-of-the-end-of-the-trump-nyc-trial-n4929393
H/T Instapundit.
Opening grafs:
That “Biden” is a sphincter with absolutely no class, dignity or sense of propriety.
(But then why would a crook have any of those?)
It was really, really stupid for the Biden campaign to stage that event outside the NY courtroom. It amounts to a public admission that this is a purely political trial.
I have been surprised by how little my lefty friends/acquaintances/colleagues have mentioned the Trump trial. I do think a fair number of them privately realize it’s a bit of a farce (although they probably don’t, or won’t, understand the extent of the absurdity). A few are embarrassed by that fact (though they’d never publicly say so). But many others are completely fine with it because…Orange Man Bad.
Conservative commentators often talk about the ‘mask slipping’. It’s no longer slipping; it’s completely off. The media has put in minimal effort to portray this as anything but politically motivated. And they don’t care. Trump must be destroyed, by any means necessary. Of course, this will ultimately extend to his supporters and then to anyone who challenges the leftist agenda in any way.
We see a similar unfolding in the asinine Alito flag ‘controversy’. It’s ridiculous on its face; the media knows it and they do precious little to try to say otherwise. The point is to hound Alito into retiring while Democrats hold the Presidency and the Senate. That’s unlikely to happen, but, failing that, make his life as miserable as possible and tarnish his reputation.
So, there’s no mask anymore. The left’s raw will to power by any and all means is on full display.
Ackler:
I agree, except for one thing: there are many Democrat voters who still trust the MSM to be truthful, and if the MSM says the trial isn’t political and Trump is a dictator, they believe it. If the trial is supposedly fair and Trump is supposedly set on becoming a dictator, there would be no reason not to hope for a guilty verdict.
The Federal Rules of Criminal Procedure (i.e., those used in FEDERAL courts) are what we would expect:
Federal Rules of Criminal Procedure Rule 29.1 Closing Argument
Rule 29.1 Closing Argument
Closing arguments proceed in the following order:
(a) the government argues;
(b) the defense argues; and
(c) the government rebuts.
New York State is different and, in my opinion, plain crazy because of a lack of rebuttal:
2022 New York Laws
CPL – Criminal Procedure
Part 2 – The Principal Proceedings
Title J – Prosecution of Indictments in Superior Courts–Plea to Sentence
Article 260 – Jury Trial–Generally
260.30 – Jury Trial; in What Order to Proceed.
Universal Citation: NY Crim Pro L § 260.30 (2022)
§ 260.30 Jury trial; in what order to proceed.
The order of a jury trial, in general, is as follows:
1. The jury must be selected and sworn.
2. The court must deliver preliminary instructions to the jury.
3. The people must deliver an opening address to the jury.
4. The defendant may deliver an opening address to the jury.
5. The people must offer evidence in support of the indictment.
6. The defendant may offer evidence in his defense.
7. The people may offer evidence in rebuttal of the defense evidence, and the defendant may then offer evidence in rebuttal of the people’s rebuttal evidence. The court may in its discretion permit the parties to offer further rebuttal or surrebuttal evidence in this pattern. In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party’s original case.
8. At the conclusion of the evidence, the defendant may deliver a summation to the jury.
9. The people may then deliver a summation to the jury.
10. The court must then deliver a charge to the jury.
11. The jury must then retire to deliberate and, if possible, render a verdict.
New York’s civil trial procedure is similar:
2022 New York Laws
CVP – Civil Practice Law and Rules
Article 40 – Trial Generally
R4016 – Opening and Closing Statements.
Universal Citation: NY CPLR § 4016 (2022)
Rule 4016. Opening and closing statements. (a) Before any evidence is offered, an attorney for each plaintiff having a separate right, and an attorney for each defendant having a separate right, may make an opening statement. At the close of all the evidence on the issues tried, an attorney for each such party may make a closing statement in inverse order to opening statements.
California procedure is similar to Federal procedure.
California Penal Code §1093(e):
“When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close.”