Below we examine five of the most recent complaints questioning the actions of New York Supreme Court Justice Juan Merchan or calling into question the fairness of the trial.
Claim: The jury need not be unanimous
“The judge in the Trump case in New York just told the jury that they don’t have to unanimously agree on what crime was committed as long as they all choose at least one A.” — Senator Marco Rubio (Republican of Florida) Wednesday
New York Supreme Court Justice Juan Merchan ‘does not demand a unanimous decision on the false accusations against me’ — Trump Wednesday
It was the big topic of discussion Wednesday, spurred by an X-rated message from a Fox News host.
This is very misleading – at best.
As the Washington Post’s Philip Bump and Devlin Barrett noted, Merchan did not say the jury need not be unanimous on Trump’s crimes. What they do not need to be unanimous about is something different: the illegal means Trump had a history of influencing the 2016 election.
It is complicated. But the bottom line: Falsifying business records — the crime alleged in the 34-count indictment against Trump — is normally a misdemeanor. But it can be considered a crime if the falsification of records is used to conceal another crime or the intent to commit another crime.
Prosecutors identified three such crimes that could be used as illegal means. Merchan said jurors don’t need to agree on which of the three applies.
It’s important to note that even Trump’s lawyers have acknowledged that this is how things usually work.
“Do you agree that this is generally not necessary?” Merchan asked Trump lawyer Emil Bove last week.
“Certainly,” replied Bové.
Bove argued that Merchan should nonetheless exercise discretion and demand unanimity, emphasizing that this is an “extremely important case.” But Merchan agreed with prosecutors that Trump should be treated like the other defendants.
(Some allies, like South Dakota Gov. Kristi L. Noem (R), even argued that Merchan’s decision violated 1999 Supreme Court precedent. Richardson v. United States, which required unanimity for the underlying violations. But this case involved a specific federal law, not state law or even all of federal law. And the Supreme Court has already recognized, in Schad v. Arizonathe “long-established rule that a jury need not agree on which overt act, among several, was the means by which a crime was committed.” “)
Allegation: Merchan withheld a copy of the jury instructions
“In many cases the judge will give the jury a written copy of his instructions, but since he did not do so in this case…” – Katie Cherkasky, Fox News legal expert, Wednesday
“I have tried many jury trials in my day. You give paper instructions to the jurors every time. … This is an unlawful pursuit, a witch hunt. — Missouri Attorney General Andrew Bailey (R) Wednesday
That objection crept in Wednesday evening, after the jury requested in a memo to the judge that the jury instructions be read back to them.
How could Merchan not give them a copy of the detailed and complicated instructions?
This is a valid question to consider – and one that legal scholars have debated for years. But it’s also a question of law in New York, where juries generally don’t receive a copy of the instructions. They can receive them if the defense consents, but Trump’s team does not appear to have pressed the issue.
Allegation: Merchan barred key expert from testifying
“We had the nation’s leading election expert, Brad Smith, ready to testify. (Merchan) wouldn’t let him. — Trump Wednesday
“He wouldn’t even allow the defense to call a witness who would have shown what a sham this whole trial is and a complete waste of time.” — Lara Trump, co-chair of the Republican National Committee, daughter-in-law of Donald Trump, Thursday morning
Merchan “didn’t want the most important expert witness, the former commissioner of the Federal Election Commission, who knows the laws very well. The judge did not allow it. – Rep. Dan Meuser (R-Pa.) last week
Merchan reportedly allowed Trump’s lawyers to call Bradley Smith to testify if they wanted. It simply limited what Smith could talk about, including preventing him from interpreting federal campaign finance law. So they didn’t call Smith.
New York law limits expert testimony to cases where “the subject matter is beyond the knowledge or understanding, or clears up the misconceptions, of a typical fact finder.”
Merchan’s decision on this front has precedent. Smith was previously barred from providing such testimony in two other Manhattan cases: the 2023 Sam Bankman-Fried case and a 2014 case.
Claim: Key Pro-Trump Witnesses Were Not Called
“Many key witnesses have not been called. …Why didn’t they call these witnesses? They didn’t call them, because they would have been on our side. — Trump Wednesday
“There are a lot of great players – very great players – who would have solved their problem or given us the victory.” — Trump Wednesday
These comments appeared to refer to, among others, Allen Weisselberg, the former longtime chief financial officer of the Trump Organization. Weisselberg, after all, is a key figure in Trump’s finances who prosecutors say was present at the crucial and controversial Trump Tower meeting attended by former National Enquirer executive David Pecker and former Trump lawyer Michael Cohen. His absence at the trial is glaring.
But prosecutors did not call Weisselberg in part because he recently pleaded guilty to perjury in another Trump-related case — lying in a way that favored Trump. They also sought to point out that Weisselberg’s lucrative severance deal with Trump prevents him from voluntarily cooperating with any investigation.
But the bottom line is this: Trump’s lawyers were also allowed to call witnesses. And they didn’t call Weisselberg. Likewise, they could have called any other witness who was on Trump’s “side” or gave him a “victory.”
They only called one witness. And it didn’t go particularly well.
Claim: Merchan consistently rejected defense Tuesday
“We talked about it, did the defense decide at some point (Tuesday) that it was no longer worth objecting to it. Because we are drawing attention to the fact that this judge is overturning almost everything what we’re trying to do… A judge has a huge impact on a trial. — Fox hosts Shannon Bream on Wednesday
“The judge rejects all objections from the defense and upholds all objections from the prosecution. » — Fox hosts Jesse Watters Tuesday night
Mercan did not reject all of the defense’s objections Tuesday. A review of the transcript shows that he supported about a third of them. He sustained more of the prosecution’s objections, but that doesn’t take into account the merits of the objections.
washingtonpost
