"That's not the law": Expert rejects Trump lawyers' complaints about judge's jury instructions

Donald Trump JABIN BOTSFORD/POOL/AFP via Getty Images
Donald Trump JABIN BOTSFORD/POOL/AFP via Getty Images

The instructions provided to jurors in former President Donald Trump's Trump's trial Wednesday are largely routine — but will prove crucial in allowing the 12 jurors to weigh the "avalanche" of testimony provided by prosecutors, legal experts told Salon.

"We have one of the biggest cases in our nation's history," said Southwestern Law School professor Richard Lorren Jolly. "We're a deliberative democracy. And there's something incredibly beautiful about that, and whether a conviction results or an acquittal, this is how the system is supposed to work."

Manhattan prosecutors have alleged that Trump was part of an illegal scheme to ultimately use $130,000 of Trump's money to keep information from the voters and unlawfully influence the 2016 presidential election.

Trump himself has questioned the supposed political bias of jurors, and proclaimed himself the victim of a vast Democratic witch-hunt.

"Mother Teresa could not beat these charges," Trump said on his social media platform Wednesday. "These charges are rigged. The whole thing is rigged!"

But legal experts say the 55 pages worth of jury instructions provided by Judge Juan Merchan provide an important blueprint that continues to educate jurors on our legal system as they begin deliberating on weeks of testimony.

"Judges use what has been done before and what has been accepted in the past, so they're not doing this from scratch," Nancy Marder, a professor at Illinois Tech Chicago Kent College of Law and director of the Justice John Paul Stevens Jury Center, said. "So I do think it provides an important roadmap for the jurists once they get into the jury room and start deliberating."

And legal experts said they hope the jury instructions themselves will build confidence in the process.

"There's been a lot of attacks on this idea that the jury is somehow unqualified or politically biased," Jolly told Salon. "And those have always been attacks on the juries and institution going back hundreds of years, but our constitutional commitment to it is on full display here."

WHAT THE JURY INSTRUCTIONS SAY

Former federal prosecutor Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection and a visiting professor of law at Georgetown University Law Center, said much of the instructions are routine.

"How you assess the credibility of witnesses, theories of accomplice liability, those types of things, that's all pretty standard," she said.

But the jury instructions do reflect discussion among the judge, prosecutors and the defense about how the jury should approach some of the most crucial aspects of the case, including how jurors should weigh Trump's alleged role.

Trump is charged with 34 felony counts of falsifying business records, with prosecutors saying that audio recordings, internal business records and witness testimony prove he was scheming to kill damaging stories about alleged extramarital sex ahead of his 2016 campaign and disguising reimbursements for the hush money to fixer Michael Cohen as legal fees — all in violation of state and federal election law and state tax law. Each count carries up to four years in prison, which Trump would likely serve concurrently if convicted. Trump denies the charges, as well as the alleged sexual encounters.

Merchan's instructions in part read: "Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise."

That means jurors have to weigh whether Trump made or caused the falsification of business records including ledger entries, checks, vouchers and invoices — some of which have Trump's signature on them.

Then, jurors have to decide whether Trump caused the falsification of records with an intent to defraud: defined as "a general intent to defraud any person or entity" that can include, but isn't limited to, depriving another of property or money.

The instructions say that the intent to defraud has to include committing, aiding or concealing "another crime."

"Another crime could be any crime," Adam Shlahet, director of the Brendan Moore Trial Advocacy Center at Fordham Law, said. "There's no limitation on only this kind of crime or only that kind of crime. It's any crime, and it's not an element of the charge to prove the person is guilty of that other crime. Just as long as their intent at the time was in furtherance of or to conceal another crime."

He added: "They don't need to have succeeded in that crime. And they don't need to have failed in that crime."

The juror instructions make clear that prosecutors are alleging that Trump intended to commit, aid or conceal a violation of state election law section 17-152. That statute, Merchan said, "provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election."

Trump's attorneys had asked the judge to instruct the jury that they would have to unanimously agree on what "unlawful means" were used in this alleged scheme.

"The court rejected that because that's not the law of New York," McCord said. "New York says the jurors don't, all 12, have to agree what the unlawful means are here."

Merchan said jurors can consider three unlawful means: a violation of federal election law, falsification of other business records or violation of tax laws.

"Trump's counsel recognized when he argued for something different last week that that's New York law, but what he had said is basically in these extraordinary circumstances where the statutes are being used here with respect to a former president, and in these circumstances, we think it's within the judge's discretion to require unanimity," McCord said. "And the judge rejected that so that one could be meaningful, depending on how deliberations go."

The instructions also lay out how jurors should approach the hard-to-define concept of reasonable doubt.

"The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty," reads the instructions. "Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt. On the other hand, it is not sufficient to prove that the defendant is probably guilty. In a criminal case, the proof of guilt must be stronger than that. A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence."

Shlahet said that excludes far-fetched — or as the jury instructions says, "imaginary" — doubts.

"If you really applied proof beyond a reasonable doubt, there's an argument that nobody would ever get convicted, right, because you could always have reasonable doubt," Shlahet said. "But if you focus on the word reasonable, and it's those doubts that are unreasonable, not real, just kind of far-fetched, what-if scenarios, then that is perfectly unreasonable, though. But it's tricky."

Retired federal trial judge Gregory Mize, a jury trial expert teaching at Georgetown University Law Center said if there's a conviction, the defendant can appeal if he or she believes there's been a "misstatement" in jury instructions.

"And an appellate court would determine if that was an improper or incorrect statement of the law, and that that error led to an unreliable verdict," Mize said." Sometimes there's something called harmless error. And sometimes a technical legal error does not lead to a reversal, because it's so minor compared to all the other aspects."

JURORS LACK WRITTEN COPY OF INSTRUCTIONS 

Though the Manhattan court released the text of the jury instructions — jurors themselves don't have access to a physical copy.

That means the jurors —which includes at least two lawyers — have to rely on their own notes.

"In other federal courts, jurors can be given a written copy of the instructions," Marder said. "I think it's harder for jurors. People listen and learn in different ways, and I think it's important that they hear the instructions, but I think it would be helpful if jurors could also see the instructions and take a copy into the jury room.

Fordham Law School professor Cheryl Bader said in her experience, jurors across jurisdictions typically lack access to written jury instructions.

"It is interesting that when it's such a kind of law, heavy instruction,  jurors are expected to sort of lay people expected to sort of absorb this law and apply it," Bader said.

Bader noted the instructions touch on tricky concepts, including campaign finance law.

The defense decided not to call their campaign finance expert as a witness after Judge Merchan reaffirmed a pretrial ruling that would prevent the expert from interpreting election law. 

Bader said it's possible that on the other hand, such an expert could have provided jurors with more insight into how to weigh the alleged underlying election crime.

Marder said that jurors have received important legal education throughout the trial, as prosecutors and the defense have made arguments and the judge has emphasized the importance of being impartial: "They're not just hearing the instructions cold."

Jurors can also send notes to the court with any problems or questions about the instructions the judge read aloud to them Wednesday.

"Judges have pattern jury instructions that have been vetted by linguists and veteran lawyers and judges," Mize said. "And it's the best possible statement in their view, these jury instruction committees. And even with all of that work, it can be very difficult to put a legal concept into ordinary language."

HOW JURORS COULD RELY ON JURY INSTRUCTIONS

In closing arguments, Trump defense lawyer Todd Blanche argued that jurors couldn't believe the testimony of Cohen, who served time in federal prison on perjury and tax fraud charges.

McCord said the jury instructions, which outline how to judge witness testimony, will prove crucial to how jurors determine Cohen's testimony.

"His credibility will be judged based on the application of these instructions about how to determine the truthfulness and accuracy of the testimony of each witness," McCord said. The jury "could find that it rejects in whole a witness testimony and they think that the person essentially intentionally testified falsely as material fact and therefore, you could reject it all. Or they could just reject whatever part they think is untruthful or wrong, accept the other parts."

Prosecutors allege that Trump's campaign went into overdrive to quash salacious stories after the October 2016 release of the Access Hollywood tape, which witnesses said stoked concerns among Trump and others about his electoral prospects.

Trump's team argues Cohen decided to pay off adult film star and director Stormy Daniels on his own without informing Trump, and that Trump was chiefly concerned about how his wife would respond to any story about an extramarital affair.

Jeffrey Abramson, emeritus Professor of Law and Government at the University of Texas at Austin, said jurors may have an easier time weighing the prosecution's evidence alleging the falsification of business records.

"Were the records falsified? Yes," he said. "Were they done with Donald Trump's permissions and knowledge? A little bit harder. They'll have to ask themselves, why was this done in the first place?"

Bader said she thinks the prosecutors' case would strongly prove the misdemeanor of falsification of business records — and she said she wonders why the defense didn't ask the judge to allow jurors to consider that lesser charge.

"That sometimes creates a compromise verdict," Bader said. " It gets more complicated when you have this additional intent requirement, that Trump intended to conceal or commit another crime."

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Blanche, meanwhile, used his closing statements to argue that business records accurately describe Cohen as being paid for performing legal work for Trump. Cohen said he did "very minimal" work for Trump in 2017 when he got paid $420,000 in monthly installments.

Blanche argued there's a lack of evidence that directly ties Trump to the case, and that jurors can't rely on Cohen.

Shlahet said it's fair and expected for the defense to make that argument — particularly given that witnesses have testified that it was Trump's signature on checks to Cohen.

"It is a weakness of the prosecution's case that they don't have a direct admission from Donald Trump saying: 'You know, I was glad you didn't put the truth in those business records,'" Shlahet said. "The prosecution doesn't have that."

But, he added: "Nor does any prosecution really ever have that."

Meanwhile, the jury instructions make clear that jurors shouldn't solely rely on Cohen.

"Under our law, Michael Cohen is an accomplice because there is evidence that he participated in a crime based upon conduct involved in the allegations here against the defendant," read the instructions.

The instructions tell jurors they cannot convict Trump on Cohen's testimony "unless it is supported by corroborative evidence tending to connect the defendant with the commission of that crime."

McCord said it's a misconception that circumstantial evidence is any less important or worthy in a criminal case: "Direct evidence and circumstantial evidence are equally valuable evidence that can be considered by the jury and one is not lesser than any other."

She pointed to the pile of evidence offered by prosecutors, including text messages and phone records, meetings between Cohen, Trump and others corroborated by other witnesses as well as handwritten notes. Such notes include exhibits where Trump employees detailed an outline of a plan to reimburse Cohen to the tune of $420,000 for a $130,00 payment to Daniels on top of other costs, including a bonus.

"It could have some, you know, at least an initial blush, some persuasiveness," McCord said. "But it kind of starts to fall apart when you dig into it, because there's lots of other things that corroborate Michael Cohen, including the notes of Allen Weisselberg and bank statement that explains exactly how they get to the $420,000 reimbursement."

Jurors do have a lot of evidence to work with, according to Abramson.

"I'm not making any prediction here, but I don't think the absence of a smoking gun given the avalanche or cascading effect of so much testimony and so much record trail isn't necessarily going to be an obstacle from the jury is taking that last step," said Abramson, who authored the book "We, the Jury: the Jury System and the Ideal of Democracy."