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.
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.
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:
The following is so-called boilerplate guidelines for New York state judges for their jury instruction for the felony charged against Trump, FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREEPenal Law § 175.10 (Committed on or after November 1, 1986). It is sourced through New York’s official Criminal Jury Instructions & Model Colloquies site which points out:
“The Criminal Jury Instructions are a set of model charges intended as a guideline for trial judges. The instructions are, of course, based on statutory provisions and prevailing case law.”
NOTE 1:It is not the complete instruction that Judge Marchan will present to the jury. But under NY Criminal Cases, it is a guideline for a case charged under Penal Law § 175.10, the felony charge facing Donald Trump. In fact, Judge Marchan is instructing the jury as I write this
NOTE 2: As the trial is in a state court, Judge Marchan may or may not advise the jury regarding the federal election law that is included in this case. Recall, however, that NY election law is implicated in this case. The presence of the federal election law in this state case is, by the way, unusual or perhaps unprecedented in a NY case of this type and its appropriateness is debated by legal scholars.
NOTE 3: The jury is not provided a copy of the jury instructions in New York. They may ask the judge specific questions as needed, however.
NOTE 4: Although this issue was actively discussed by analysts prior to the jury instructions, he jury can’t choose to convict Trump on the misdemeanor falsifying business records crime in New York, Penal Law 175.05(1) – SECOND DEGREE FALSIFYING BUSINESS RECORDS: DEFINITIONS AND ELEMENTSbecause Trump’s lawyers didn’t request that the jury instructions include “lesser included offenses,” which would have allowed the jury to weigh misdemeanors. New York law says that judges can submit lesser-included charges to the jury “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” The law further says that, in such situations, if either side asks for a lesser-included option, then the court must give it. Moreover, complicating things, in Trump’s case, the two-year statute of limitations had passed for the falsifying business records statute. Yet, some analysts opined and NY judicial precedent exists that – if the Trump lawyers had timely requested it (as set out above) – the two-year SOL would have been waived).
So, why would Trump’s legal team have decided against seeking this this waiver? If his lawyers believed Trump faced a near-certain felony conviction, the jury would have had an “escape route” from having only a felony to consider. And the misdemeanor would, as a first offense, likely resulted in no jail time. Politically, a misdemeanor conviction would strike many – Trumpists and some non-Trumpists – as a mild injury to Trump, if any at all. My guess is that Trump himself nixed the idea – being a consistent and (stupidly) confident risk taker, he would have bridled at accepting any conviction on any charge. If Trump’s convicted in the days ahead, his legal team’s decision here will be considered a game changer, and if we learn that Trump vetoed their plan, finally, where it counts, Trump would have been hoist on his own petard.
Here is the NY state jury instruction boilerplate, emphasis added:
“The (specify) count is Falsifying Business Records in the First Degree.
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:
Select appropriate alternative: [direction to judge]
makes or causes a false entry in the business records of an enterprise; or alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise;or omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he or she knows to be imposed upon him or her by law or by the nature of his or her position; or prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
The following terms used in that definition have a special meaning:
ENTERPRISE means any entity of one or more persons, corporate or otherwise, public or private, engaged in business,
BUSINESS RECORD means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.
INTENT means conscious objective or purpose. Thus, a person acts with intent to defraud when his or her conscious objective or purpose is to do so.
In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements:
That on or about (date) , in the county of (county) , the defendant, (defendant’s name),
Select appropriate alternative: [direction to judge]
made or caused a false entry in the business records of an enterprise; or altered, erased, obliterated, deleted, removed or destroyed a true entry in the business records of an enterprise; or omitted to make a true entry in the business records of an enterprise in violation of a duty to do so which the defendant knew to be imposed upon him/her by law or by the nature of his/her position; or prevented the making of a true entry or caused the omission thereof in the business records of an enterprise; and, That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.
If the affirmative defense does not apply, conclude as follows:
If you find the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of this crime.
If you find the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of this crime.
If the affirmative defense does apply, continue as follows:
If you find that the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Falsifying Business Records in the First Degree.
If you find that the People have proven beyond a reasonable doubt both of the elements, you must consider an affirmative defense the defendant has raised. Remember, if you have already found the defendant not guilty of Falsifying Business Records in the First Degree, you will not consider the affirmative defense.
Under our law, it is an affirmative defense to this charge of Falsifying Business Records in the First Degree that the defendant, at the time he/she engaged in the conduct constituting the offense, was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of his/her employer or of a superior officer or employee generally authorized to direct his/her activities.
Under our law, the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.
In determining whether the defendant has proven the affirmative defense by a preponderance of the evidence, you may consider evidence introduced by the People or by the defendant.
A preponderance of the evidence means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time taken to present the evidence, but in terms of its quality and the weight and convincing effect it has. For the affirmative defense to be proved by a preponderance of the evidence, the evidence that supports the affirmative defense must be of such convincing quality as to outweigh any evidence to the contrary.
If you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then, based upon your initial determination that the People had proven beyond a reasonable doubt both of the elements of Falsifying Business Records in the First Degree, you must find the defendant guilty of that crime.
If you find that the defendant has proven the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of Falsifying Business Records in the First Degree.”
