Tag: hush money

Trump’s Pre-Sentence Interview – Will He or Won’t He?

Michael Matheron1 Comment

Today Donald Trump will likely sit for his pre-sentence interview with a New York City Probation Department official, but unlike most persons, he will not have to attend in person; his interview will take place remotely while he is in Mar-A-Lago. Also, unlike most persons, Trump will have his lawyer present, this due to Judge Merchan’s order. So much for Trump’s bloviating about being treated unfairly.

Note too that, according to Business Insider, “NY state law requires the judge to order a pre-sentencing report, but does not require that the defendant participate in the process.” Should, however, Trump follow that path, Business Insider continued, according to Angel Rodriguez, founder of Avenues for Justice, “It would piss the judge off to no end’ . . . especially given his history of gag order violations and disruptive courtroom behavior.” We all know Judge Merchan’s temperament by now, and “pissed off” might be an understatement.

NY pre-sentence interview form

Trump, also, in another manner of not participating, could attend the virtual meeting but refuse to answer any questions except, perhaps, regarding his name, address, and other similar queries. According to a NY defense attorney cited by Business Insider, “If he wants to show remorse, then certainly the probation report is a good place to start doing that, but Donald Trump has not shown remorse and insists everybody else are the wrongdoers.” Trump’s chances for sentencing leniency will be harmed with this approach, and it’s a pretty sure bet he would express neither regrets for his crimes nor concerns for the victims, like Stormy Daniels or Michael Cohen.

Trump’s usual “everybody else are the wrongdoers” approach may fit a Mafia families meeting, how differently New York Courts.com describes the benefits to a cooperative demeanor:

The pre-sentence report is a chance for the defendant’s lawyer to say good things about the defendant, like that the defendant is in a counseling program or has a steady job and takes care of an ailing family member. The pre-sentence interview is a chance for the defendant to try to make a good impression and explain why he or she deserves a lighter punishment. The pre-sentence report is also a chance for a crime victim to explain how he or she has suffered and what he or she has lost.

Will he or won’t he? We know he cannot regulate his fury or his massive self-confidence. In sum, the Business Insider article quotes a former NY white collar crime prosecutor, Diana Florence:

“It’s perfectly fine to say the matter is on appeal, and I maintain my innocence. What’s not fine is to say the judge is corrupt and the jury is corrupt, and the witnesses must die.”

Indeed. But given Trump’s bravura-tinged self-defeating nature in these legal settings, his lawyer’s job convincing him to just shut up, shut up, shut up is a Herculean task. As we’ve witnessed, Trump’s lawyers are not Greek gods.

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BREAKING – Juror Misconduct in Trump NY Trial? — MAGA Screaming for Mistrial

Michael Matheron1 Comment
I had nothing to do with this . . .

Newsweek just reported that a Trump trial’s juror’s cousin may have been contacted by the juror about the guilty verdicts that were to come. This has caused supercharged MAGA derangement symptoms, i.e., this proves the trial and convictions were politically motivated shams. Some have called for a mistrial to be immediately declared, which I’ll discuss below.

Newsweek reported:

Questions have surfaced regarding the jury in former President Donald Trump‘s New York City hush money trial after the presiding judge flagged a post to social media alleging that a juror had spoken about Trump’s verdict before it was handed down. According to New York State Supreme Court Justice Juan Merchan’s letter, which was sent to Trump lawyer Todd Blanche and Manhattan District Attorney Prosecutor Joshua Steinglass, a comment was left on the New York State Unified Court System’s Facebook page by a user under the name “Michael Anderson,” who wrote, “My cousin is a juror and says Trump is getting convicted. Thank you folks for all your hard work!!!!” The comment was in response to a post by the court on May 29, a day before the former president was convicted of 34 felony counts in connection to hush money paid to adult-film actress Stormy Daniels during Trump’s 2016 presidential campaign. Merchan wrote that as of Friday, Anderson’s comment was “labeled as one week old.”

This was quickly shown to be a hoax by none other than the poster himself:

This is still developing, and who knows what will result, but the calls for a mistrial appear to be futile under New York law:

New York Consolidated Laws, Criminal Procedure Law – CPL § 280.10 Motion for mistrial

At any time during the trial, the court must declare a mistrial and order a new trial of the indictment under the following circumstances:

1. Upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.  When such an error, defect or conduct occurs during a joint trial of two or more defendants and a mistrial motion is made by one or more but not by all, the court must declare a mistrial only as to the defendant or defendants making or joining in the motion, and the trial of the other defendant or defendants must proceed; [emphasis added]

2. Upon motion of the people, when there occurs during the trial, either inside or outside the courtroom, gross misconduct by the defendant or some person acting on his behalf, or by a juror, resulting in substantial and irreparable prejudice to the people’s case.  When such misconduct occurs during a joint trial of two or more defendants, and when the court is satisfied that it did not result in substantial prejudice to the people’s case as against a particular defendant and that such defendant was in no way responsible for the misconduct, it may not declare a mistrial with respect to such defendant but must proceed with the trial as to him;

3. Upon motion of either party or upon the court’s own motion, when it is physically impossible to proceed with the trial in conformity with law.

While slightly ambiguous, the text can be read to indicate that the motion must be brought during the trial, and after the verdict has been reached, but not following the court’s announcement of the verdict which occurred on March 30. We’ll see, though, should this incident be proved to be not a hoax. Then there ought to be a defendant’s remedy, if not a mistrial, then in an appeal. But – egads! – what next in the ongoing Trump saga?!

Sorry MSNBC, I AM Dancing in the Street . . .

Michael Matheron2 Comments

Yesterday, during MSNBC’s coverage of the Trump transformation from “first criminally indicted former president” to “first criminally convicted former president,” Jen Psaki – with the general agreement of the polite panel (except the always reliable Joy Reed) – advised viewers that she wasn’t about dancing in the street over the news of Trump’s 34 count conviction. Apparently, that would be too impolite and incivil. Being an aging baby boomer I am delighted by impolite, and a schadenfreude admirer regarding enemies of the state, so, I took a pass on Psaki’s advice. One needs to celebrate a victory, especially since Trump has for decades avoided such a comeuppance. So, here’s my attempt at schadenfreudish happy feet:

Trump Hush Money Trial Coverage, No. 01

Michael Matheron2 Comments

Introduction: Media Causes Confusion

A rather sensible trial strategy may be pursued by Trump’s beleaguered lawyers in his hush money trial, just begun in New York City this morning with jury selection. No, not the obvious one: somehow convincing Trump to not take the stand in his own defense. The perhaps sensible idea has to do with the judge’s charge to the jury for their deliberations and an upcoming court discussion of what may actually be offered into evidence against Trump himself, for example, whether uncharged behavior in the present case can be used against Trump, like his comments about E. Jeanne Carroll, or about Judge Engoron that led to gag orders.

In this first of a series of posts, here’s a quick review of the basics first: Trump is charged with New York state law prohibiting falsifying business records, in this case, related to the so-called Stormy Daniels affair. In August 2018, Michael Cohen, Trump’s erstwhile “fixer,” pled guilty to federal crimes related to Trump’s case, although the federal charges differed, and importantly so, as they included two federal campaign finance violations. Today, Trump sat in court – and apparently nodded off – during day two of jury selection, which may take quite some time, consensus opinion is two weeks. Once the jury is impanelled, it’s off to the races with opening statements.

Due to confused and confusing media coverage, many misunderstand the resulting consensus media observation that this trial is primarily about simply falsifying business records related to a payoff to Stormy Daniels. This is why, I believe, so many believe the case is based on minor charges. Some ask, “So what, that he falsified records about a porn star payoff? “Where’s the huge crime that justifies indicting a former president so slight a matter?” The media reporting causes those questions to be not altogether ill-informed.

Confusion at Its Source

So, first, let’s attack confusion, and begin by looking at the New York statutes that underlie all 34 criminal charges. [All emphases added] (The two provisions below are from the New York Penal Laws and are set out in slightly different color blocks for reasons that will be clear later in this posting.)

§ 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.

Falsifying business records in the first degree is a class E felony.

§ 175.05 Falsifying business records in the second degree.
A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
1. Makes or causes a false entry in the business records of an enterprise; or
2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

Falsifying business records in the second degree is a class A misdemeanor.

Note that the grand jury indictment [See full text] that led to this trial alleged that Trump violated the first of the statutes listed above, NY Penal L § 175.10 (2022), the felony. Nowhere in the indictment was the second above listed misdemeanor statute mentioned, NY Penal L § 175.05 (2022). However, the possible interaction between these two provisions – felony vs. misdemeanor – has caused most of the confusion noted in the introductory section. And as you’ll see, it can be confusing, but not so much as the media has unfortunately made it, at times, appear.

Hopefully Not Making This More Confusing . . .

Section 175.10, in clause one provides: “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 . . .” Note that § 175.10, which sets out a felony, references the text of § 175.05, the misdemeanor provision whose full text is set out above in the second colored block. So, consequently, to convict a defendant of the felony (§ 175.10), the prosecution must prove, by necessity, for any of the 34 charges against Trump, at least one of the four misdemeanor elements of § 175.05. And that’s just for starters. (The Statement of Facts [See full text] which was issued by the prosecution at the time of the indictment one-year sets out facts that rely mostly upon documentary evidence that should prove adequate to the first task under § 175.05, the misdemeanor which he is not directly charged with violating, which as we’ll see in a future posting as I watch court action as the issues develop over the week ahead.

Stay tuned for Trump Hush Money Trial Coverage, No. 02.