This post is especially addressed to our learned judge, who seems to like a shotgun approach to see what might stick in claiming the Trump trial judge committed legal errors and the jury was wrong. He said:

"I personally would not have believed Cohen beyond a reasonable doubt or Stormy either. I find it abhorrent that the trial judge believes you can convict a defendant without all jurors agreeing that a particular and specific precedent crime occurred..." ("How Trump has damaged the judiciary" thread.)

First, as I'm sure our learned judge knows, assessment of the credibility of witnesses is solely the function of the jury, unless the trial judge finds that no reasonable jury could believe or disbelieve the witnesses and directs a verdict. Go ahead--bet money on whether this will be a winning argument on appeal.

This Trump jury sat through six weeks of directly hearing the witnesses' testimony, watching their demeanor, and viewing the exhibits. Our learned judge sat through how many hours...of what? Fox News? Fox and other media are all inadmissible hearsay, Your Honor. (Unless admitted for a limited purpose, like showing something was published or reported on.)

Your second point, quoted above, is at least a legal argument. Since you provided no details or specificity in this argument, I looked up the jury instructions so at least we know what we're talking about. As I'm sure you know, Your Honor, the instructions are where the trial judge gives the law to the jury. These instructions ARE reviewable by the appeals court as questions of law, not fact.

LHeym helpfully posted the jury instructions, and I just read them. I think I found what you are obliquely referring to. In the instruction titled "New York Election Law Sec. 17-152 Predicate, is the following language:

"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."

JudgeG, I honestly don't know whether that is an accurate statement of NY law. Do you? If so, do you have statutes or caselaw to support your argument? You'd need them for an appeal on this ground.

To overturn giving an instruction that was not supported by the evidence; or (2) not giving an instruction that was required by the evidence; the appropriate standard . . . is whether the trial court abused its discretion.” Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015).

Similarly, evidentiary rulings are reviewed under an abuse of discretion standard. Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013). To amount to an abuse of discretion, the trial court’s decision must be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). Absent a “flagrant miscarriage of justice,” the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

No party may attack a jury instruction as error who unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection. RCr 9.54(2). Ky Rule.

What RCr 9.54(2) means is to preserve a hurry instruction on appeal as an error of law the party must do 3 things:

1) object to the instruction given, 2) state a legal ration for the objection to the jury instruction, and 3) proffer a jury instruction. Noe, in all honest every recent case that I have seen where an instruction in error issue was not preservers KY courts go ahead an analysis the matter under palpable error.


One must show that an erroneous instruction in fact mislead the jury in KY. Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010). Travis holds that when “there is no reasonable possibility that the jury actually relied upon the erroneous theory [of guilt]–in particular where there is no evidence of the theory that could mislead the jury–then there is no unanimity problem.”  Id. at 463.

I assume NY is similar to above as KY does not seek to be an outlier on these issues.

Unless all three elements are present a jury instruction regardless of whether it is faulty is not preserved as an issue on appeal.

Ky caselaw requires the judge to instruct on every theory of the case. Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007). The NY trial judge in this case has done the same instructing on the prosecution’s proffered 3 theories of “unlawful means.”

I do not know whether the Judge’s instruction as it relates to non-unanimity as to unlawful means is an error. I am unfamiliar with a similar statute in KY to research off of. I have never studied, prosecuted, nor practiced a campaign violation case under any section of KRS.

What I know is, the Judge appeared to handle this case very well. He is a senior member of the Court. He is in the best position to have gotten this matter right. Close issues of law require more than one learned person’s view. The trial judge made applied the law correctly, and the appellate courts could decide to change controlling precedent.

The fact is we do not know. We can only know after months of reading, writing, argument, deliberation, and rendering of an opinion. The uneducated, grotesque attack on the integrity of the process as intentionally distorted to meat a political end is shameful. It is more shameful by a retired judge. A person who knows better to make such acquisitions.

No NY caselaw on the issue applied to the facts at had had been made. The Judge could have got it wrong. That does not mean the Judge intentionally erroneously instructed as to intend to walk the jury into a conviction as has been argued by a former judge on this site.

It is my understanding that Judges hate, above all else, to be overturned on appeal. Justice Marchan appears, from the analysis I've seen, to have adhered to the established Model Jury Instruction in most respects with only minor deviations to fit the individual circumstances the case presented.

He bent over backwards to give Trump leeway almost no other defendant would receive; almost anybody else violating a clear gag order that many times in his Court would have done jail time for Contempt.

I don't expect the verdict to be overturned, and hope that Trump's ongoing violations of the gag order, which remains in effect until sentencing, and his deliberate flouting of the rules for post-conviction processing (he should have gone directly from the courtroom post-conviction and reported to the Probation Officer assigned and submitted a urine sample, like all other convicts), combined with Trump's previous liability for Fraud (Trump University and the Trump Organization), will hopefully earn him a sentence with at least some custodial component.

His lack of remorse and acceptance of guilt for his crimes should also weigh against him in sentencing.

quote:

Originally posted by RolandtheHeadless:
His lack of remorse and acceptance of guilt for his crimes should also weigh against him in sentencing.

I am certainly biased, as I despise the sight of him and the sound of his voice, and anything that rhymes with his last name, but I hope he's remanded directly into custody after sentencing, he doesn't merit release pending the appeal.

https://apnews.com/article/fac...verdict-679053515836

Those who rely on social media to be reinforce their existing views are a large part of the problem.

I, personalty….. with “personally” being the operative word. I, PERSONALLY, don’t get past the reasonable doubt requirement when the witness(es) have incontrovertible histories of lying (with convictions for lying and financial or incarceration motives to testify). I don’t think my doubt is unreasonable. Remember, Trump tried to call other witnesses who would testify to the falsity of Cohen’s allegations but was denied that right. The guy was in the clink, I’ll admit, but available. More than just bothersome.

BTW, trial judges make numerous fact decisions during trials and the hearings that precede them. Different standard of review and proof burdens than the jury , I’ll agree.


As to the jury instructions, I’m not saying they didn’t comply with extant NY law, but they’re bizarre and wrong in that no one in this world can tell me (under the instructions) what illegal act Trump committed to activate the felony statutes.
Trump may have committed a zillion crimes, but not requiring the prosecutor to prove the one(s) necessary to invoke the felony accusations is just not right and I think in violation of several Federal protections.

So, with Cohen’s new and different testimony (and with his history of lying on the precedent crimes) I’d have reasonable doubt…. Sadly, at least to me, the judge’s instructions (even if proper under existing NY law) voided the reasonable doubt protection by not requiring unanimous agreement and… as it should all Americans, bothers me.

Oh yeah. Reading comments here, posters attack Trump and rant as to his domestic failures and adultry. Harvey Weinstein’s conviction just got overturned because the Appeals court decided the salacious testimony that was designed by the State to inflame jurors seems was improper to the point of requiring a new trial. Unnecessary Stormy details seems to have worked in the Trump case with the steamy play-by-play. Even a great lawyer here, Mike, seems to have wanted Trump to be convicted of being an unfaithful asshole as much as a concealer of how campaign funds were spent.

One final question re: appeals?
Someone define what behaviors “influence an election”?

quote:

Originally posted by “RolandtheHeadless:
This post is especially addressed to our learned judge, who seems to like a shotgun approach to see what might stick in claiming the Trump trial judge committed legal errors and the jury was wrong. He said:

"I personally would not have believed Cohen beyond a reasonable doubt or Stormy either. “I find it abhorrent that the trial judge believes you can convict a defendant without all jurors agreeing that a particular and specific precedent crime occurred..." ("How Trump has damaged the judiciary" thread.)

First, as I'm sure our learned judge knows, assessment of the credibility of witnesses is solely the function of the jury, unless the trial judge finds that no reasonable jury could believe or disbelieve the witnesses and directs a verdict. Go ahead--bet money on whether this will be a winning argument on appeal.

This Trump jury sat through six weeks of directly hearing the witnesses' testimony, watching their demeanor, and viewing the exhibits. Our learned judge sat through how many hours...of what? Fox News? Fox and other media are all inadmissible hearsay, Your Honor. (Unless admitted for a limited purpose, like showing something was published or reported on.)

Your second point, quoted above, is at least a legal argument. Since you provided no details or specificity in this argument, I looked up the jury instructions so at least we know what we're talking about. As I'm sure you know, Your Honor, the instructions are where the trial judge gives the law to the jury. These instructions ARE reviewable by the appeals court as questions of law, not fact.

LHeym helpfully posted the jury instructions, and I just read them. I think I found what you are obliquely referring to. In the instruction titled "New York Election Law Sec. 17-152 Predicate, is the following language:

"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."

JudgeG, I honestly don't know whether that is an accurate statement of NY law. Do you? If so, do you have statutes or caselaw to support your argument? You'd need them for an appeal on this ground.

quote:

Originally posted by JudgeG:
I, personalty….. with “personally” being the operative word. I, PERSONALLY, don’t get past the reasonable doubt requirement when the witness(es) have incontrovertible histories of lying (with convictions for lying and financial or incarceration motives to testify). I don’t think my doubt is unreasonable. Remember, Trump tried to call other witnesses who would testify to the falsity of Cohen’s allegations but was denied that right. The guy was in the clink, I’ll admit, but available. More than just bothersome.

BTW, trial judges make numerous fact decisions during trials and the hearings that precede them. Different standard of review and proof burdens than the jury , I’ll agree.


As to the jury instructions, I’m not saying they didn’t comply with extant NY law, but they’re bizarre and wrong in that no one in this world can tell me (under the instructions) what illegal act Trump committed to activate the felony statutes.
Trump may have committed a zillion crimes, but not requiring the prosecutor to prove the one(s) necessary to invoke the felony accusations is just not right and I think in violation of several Federal protections.

So, with Cohen’s new and different testimony (and with his history of lying on the precedent crimes) I’d have reasonable doubt…. Sadly, at least to me, the judge’s instructions (even if proper under existing NY law) voided the reasonable doubt protection by not requiring unanimous agreement and… as it should all Americans, bothers me.

Oh yeah. Reading comments here, posters attack Trump and rant as to his domestic failures and adultry. Harvey Weinstein’s conviction just got overturned because the Appeals court decided the salacious testimony that was designed by the State to inflame jurors seems was improper to the point of requiring a new trial. Unnecessary Stormy details seems to have worked in the Trump case with the steamy play-by-play. Even a great lawyer here, Mike, seems to have wanted Trump to be convicted of being an unfaithful asshole as much as a concealer of how campaign funds were spent.

One final question re: appeals?
Someone define what behaviors “influence an election”?

quote:

Originally posted by “RolandtheHeadless:
This post is especially addressed to our learned judge, who seems to like a shotgun approach to see what might stick in claiming the Trump trial judge committed legal errors and the jury was wrong. He said:

"I personally would not have believed Cohen beyond a reasonable doubt or Stormy either. “I find it abhorrent that the trial judge believes you can convict a defendant without all jurors agreeing that a particular and specific precedent crime occurred..." ("How Trump has damaged the judiciary" thread.)

First, as I'm sure our learned judge knows, assessment of the credibility of witnesses is solely the function of the jury, unless the trial judge finds that no reasonable jury could believe or disbelieve the witnesses and directs a verdict. Go ahead--bet money on whether this will be a winning argument on appeal.

This Trump jury sat through six weeks of directly hearing the witnesses' testimony, watching their demeanor, and viewing the exhibits. Our learned judge sat through how many hours...of what? Fox News? Fox and other media are all inadmissible hearsay, Your Honor. (Unless admitted for a limited purpose, like showing something was published or reported on.)

Your second point, quoted above, is at least a legal argument. Since you provided no details or specificity in this argument, I looked up the jury instructions so at least we know what we're talking about. As I'm sure you know, Your Honor, the instructions are where the trial judge gives the law to the jury. These instructions ARE reviewable by the appeals court as questions of law, not fact.

LHeym helpfully posted the jury instructions, and I just read them. I think I found what you are obliquely referring to. In the instruction titled "New York Election Law Sec. 17-152 Predicate, is the following language:

"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."

JudgeG, I honestly don't know whether that is an accurate statement of NY law. Do you? If so, do you have statutes or caselaw to support your argument? You'd need them for an appeal on this ground.

You just skipped over the minor detail that Weisselberg is "in the clink" after pleading guilty to Perjury in the Trump Organization trial, and Trump's defense objected to any mention of his $2 million separation agreement. Letting him give testimony with 2 million reasons to lie without telling the jury about those reasons would be plain error, and Justice Marchan never ruled he couldn't testify, just that if he did the separation agreement would be admissible, so Trump didn't call him.

I think the DOJ wouldn’t allow him to appear in person.

Funny, one incarcerated convict and one former incarcerated convict and perjurer in a battle for would have been in a battle for truth and the judge instructs the jury that truth beyond a reasonable doubt is not required from the State’s witness.

Just find a crime… it really doesn’t matter which one. The majority (much less all of you), don’t have to believe “our” witness with any specificity… just agree that something bad happened (doesn’t matter what) , and you can convict.

That’s basically what the instructions imply.

quote:

Originally posted by JudgeG:
I think the DOJ wouldn’t allow him to appear in person.

Funny, one incarcerated convict and one former incarcerated convict and perjurer in a battle for would have been in a battle for truth and the judge instructs the jury that truth beyond a reasonable doubt is not required from the State’s witness.

Just find a crime… it really doesn’t matter which one. The majority much less all of you, don’t have to believe “our” witness with any specificity… just agree that something bad happened (doesn’t matter what) , and you can convict.

That’s basically what the instructions imply.

As per usual, you think wrong. The DOJ has nothing to do with him, he's incarcerated at Rikers Island on State charges. Furthermore:

quote:

During the trial, Judge Juan Merchan inquired if either side had attempted to get Weisselberg to testify. Both parties confirmed they had not.

Link

Find a different pile of shit to fling at the wall, 'Judge'.

Earnest, seems your gripe is with the NY Legislature not Judge Merchan.

§ 175.10 Falsifying business records in the first degree.

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.

There is no requirement in the statute that the prosecution prove the specific crime that was intended simply that "another crime" was intended. Seems the legislature in its infinite wisdom could have used words like "an intent to commit another specifically alleged crime" or words to similar affect had they intended the result you desire. Also there is no requirement that the prosecution prove that the other crime was actually committed, just intended. Why should Judge Merchan undertake to rewrite the law? I thought Republicans hated judges that were not strict constructionists?

Mjines the jury instructions are very clear on that matter.

I have posted the jury instructions and my attempt to explain this matter in a thread.

If anyone wants to know what the judge instructed. Stop watching Fox and go read the instructions.

I also posted the jury verdict form. Again, unanimity is not an issue.

Trump’s team should have fought for a misdemeanor instruction; even if they had to waive the SOL issue. That is how the jury would have hanged.

quote:

Originally posted by JudgeG:
I think the DOJ wouldn’t allow him to appear in person.

Funny, one incarcerated convict and one former incarcerated convict and perjurer in a battle for would have been in a battle for truth and the judge instructs the jury that truth beyond a reasonable doubt is not required from the State’s witness.

Just find a crime… it really doesn’t matter which one. The majority much less all of you, don’t have to believe “our” witness with any specificity… just agree that something bad happened (doesn’t matter what) , and you can convict.

That’s basically what the instructions imply.

Did you not read the instruction I quoted? You keep making conclusory statements about jury instructions, so why don't you look at what we should be talking about?

Let's look at it again:

"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."

This instruction clearly states that the jury must UNANIMOUSLY find the crime of conspiring to promote or prevent the election of any person by unlawful means.

The instruction goes on to say the jury need not be unanimous as to what the unlawful means were. Apparently you have no legal authority that this language was wrong.

I guess if I were Trump's lawyer (which would never happen), I would try to fashion the appeal as a denial of due process, which would give Trump a route to the US Supreme Court.

Rolland hit the nail on the head as structuring the issue in terms of due process.

The issue w that is, this year the Supreme Court refused to apply the due process clause to jury selection. Why, but to stop the outcome, would the S. Ct., then apply the due process clause to not just jury instructions? The Due Process Clause application would be to not just the insurrection, but would have to invalidate the NY statute (all similar statutes) that allow a jury not to agree on the ancillary “ unlawful means.”

The NTY statute itself would have to be held to be a violation of Due Process Clause. Really, the 6th Amendment incorporated by the Due Process Clause.

My Goodness Rolland has figured out how this case gets to the S. Ct., snd how they could change the law to invalidate the conviction.

None of that means, even if it came to pass, the NY trial judge was wrong, it intentionally instructed so as to mastermind an outcome of guilty.

It means that an inconsistent S.Ct., changed the law after the game was played.

There must have been some on-the-record discussions, objections, arguments, and rulings on this instruction. It would be interesting to read them.

Maybe defense counsel didn't object at the right time, or failed to offer a correct alternative, or even agreed to the instruction. Who knows at this point?

Does anyone know if the trial transcript is a public record once filed with the NY appeals court, under NY law?

Ask and you shall receive.

https://ww2.nycourts.gov/peopl...trump-criminal-37026

That appears to be to transcripts of pretrial proceedings. Don't see anything to do with jury instructions.

I'd be surprised if there is a transcript of trial proceedings this soon.

quote:

Originally posted by MJines:
Earnest, seems your gripe is with the NY Legislature not Judge Merchan.

§ 175.10 Falsifying business records in the first degree.

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.

There is no requirement in the statute that the prosecution prove the specific crime that was intended simply that "another crime" was intended. Seems the legislature in its infinite wisdom could have used words like "an intent to commit another specifically alleged crime" or words to similar affect had they intended the result you desire. Also there is no requirement that the prosecution prove that the other crime was actually committed, just intended. Why should Judge Merchan undertake to rewrite the law? I thought Republicans hated judges that were not strict constructionists?

Do you think Trump's counsel may argue on appeal that the legislation is unconstitutional in failing to require notice to the defendant of the "other crime."

I've never researched the issue, but suspect there must be precedent.

https://www.msn.com/en-us/news...82d2e5784abe98&ei=10

Looming over Trump’s conviction: Reversal by the ‘13th juror’
Story by Erica Orden and Ben Feuerherd • 7h • 4 min read

quote:

Originally posted by RolandtheHeadless:

quote:

Originally posted by MJines:
Earnest, seems your gripe is with the NY Legislature not Judge Merchan.

§ 175.10 Falsifying business records in the first degree.

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.

Do you think Trump's counsel may argue on appeal that the legislation is unconstitutional in failing to require notice to the defendant of the "other crime."

I've never researched the issue, but suspect there must be precedent.

The defense will look for ways to get the appeal before SCOTUS, per MAGA Mike's dream. There may be several ways of doing that including the above scenario.

quote:

Originally posted by RolandtheHeadless:
That appears to be to transcripts of pretrial proceedings. Don't see anything to do with jury instructions.

I'd be surprised if there is a transcript of trial proceedings this soon.

I’ll keep looking. I am sorry bust Monday and week.

In Alaska the trial transcript wouldn't be ordered unless and until a party appeals; and that party must arrange and pay for it.

Assuming Trump appeals, I wouldn't expect the transcript to be finished for a month after sentencing, unless some expedited process is applied.

Say, what happened to the judge?

Yes, but in KY we have done away w court reporters and paper transcripts in the courts of justice.

The record is recorded electronically.

That makes citation to the record a pain. However, the record is available as it is made.

We do not get a transcript. We get a video disc.

I bet the trial was recorded in this manner in NY.

I just have to go find it.

Administrative providing bf ALJs but not hearing officers still have transcription.