A CONVICTION--ESPECIALLY AN AFFIRMED FELONY CONVICTION--IN THIS NYS TRUMP CRIMINAL TRIAL NOW SEEMS LESS LIKELY THAN IT PREVIOUSLY HAD SEEMED--PART I

Gang,

I. Introduction

Under Heading VI in my seventh “Contemplating Coup Convictions” (CCC) newsletter edition (posted on April 15), I promised that the very next edition in the series on jury nullification would at least cover two particular issues “[u]nless events in Justice Merchan’s Manhattan courtroom over the next week or so require me to focus my attention elsewhere.” Well, such events, and related information, have since come to light.

Today’s eighth edition of my CCC newsletter, which also is Edition B in the series on jury nullification, is the first of two editions which will address the various problems posed by a certain type of criminal defendant—one who has absolutely no moral compunctions but has an unprecedentedly large amount of monetary and other support—in terms of ensuring that a principle that is generally recognized as a bedrock of American criminal procedure is observed in that defendant’s trial: that as to each count in the indictment, each of the twelve seated jurors must vote “guilty” if, on the basis solely on the evidence admitted by the judge during the trial and on the law as provided to the jurors by the judge, the juror is convinced beyond a reasonable doubt that the defendant is guilty on that count, and otherwise must vote “not guilty” as to that count.

Under Heading II below, structured around oral statements I made months ago to some of the subscribers to my CCC newsletter, I will examine those various problems and methods the judge in such a case should consider employing to deal with those problems.

Under Heading III below, I will briefly set out what the second edition of this two-edition miniseries will cover: principally, the extent to which Justice Merchan has fallen short, and seems likely to continue to fall short, with respect to employing the various methods recommended under Heading II below.

Finally, under Heading IV below, I will briefly introduce and then display this edition’s photograph, and then will briefly pose a trivia question. Under Heading I in my seventh CCC newsletter edition, I indicated that, to save time, I would not be including a photograph I had taken (nor a trivia question relating somehow to that photograph) in any future editions in this series on jury nullification.

However, without my advance knowledge, Substack included, as the signature photograph for the seventh edition, a still photograph taken from a video of Trump answering reporters’ question, which video I had linked to under Heading V.B of that edition. I don’t think I’ll desire to have a photo of Trump used as the signature photograph for any of my CCC newsletter editions unless and until there is a photograph available for use in which the color of his suit matches the trademark color of his hair.

So as to avoid Substack’s using in a future CCC newsletter edition a photo which I did not intend to have used for that purpose, each of the editions will end with a photo and a brief description of the photo, and perhaps with a brief trivia question included.

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For your assistance, I will now lay out a table of contents of the various headings used in this edition. Of course, emails do not have pages, so the table of contents will not include references to page numbers on which each of the headings begins.

Here, then, is the table of contents:

I. Introduction

II. Vital Oral Statements I Made Months Ago to Some Subscribers to My CCC Newsletter Concerning Jurors in the Trump Criminal Cases

A. Background

B. Jury Nullification

C. Explicit or Implicit Threats and the Fears They Cause

D. Bribe Offers

E. ‘Personal’ Communications With Prospective, and Especially Seated, Jurors

1. Generally

2. The Mistrial Problem

3. The Realistic Possibility That Trump Will Go the ‘Outrageous’ Mistrial Route in the New York Trial

F. How Do You Solve a Problem Defendant Like Donald Trump?

1. Maintaining the Anonymity of the Seated Jurors

2. Preventing ‘Jury-Duty Interference’

III. What Will Follow in Part II of This Two-Edition CCC Newsletter Miniseries on the Decreased Likelihood That This NYS Criminal Trial Will Result in a Conviction--Especially an Affirmed Felony Conviction

IV. Photograph

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II. Vital Oral Statements I Made Months Ago to Some Subscribers to My CCC Newsletter Concerning Jurors in the Trump Criminal Cases

A. Background

Months ago, I orally advised some of the subscribers to my CCC newsletter that convictions in the pending four criminal prosecutions against Trump are most certainly achievable--indeed, in the federal prosecutions, are extremely likely--if everyone involved does what they should and must do. However, I also warned those subscribers that there were strong reasons to doubt whether everyone--particularly the jurors and the judges--would do what they should and must do.

There were six matters on which I focused regarding those warnings.

B. Jury Nullification

The first matter was jury nullification--the prime subject of this CCC newsletter series. As I explained under Heading B.2.e in the "About" page on my CCC Substack website, I had first mentioned that subject in a newsletter in the September 19, 2023 edition of my non-Substack Trump newsletter.

C. Explicit or Implicit Threats and the Fears They Cause

The second matter on which I focused in my talks with some subscribers to the newsletter was threats made to members of the jury pool, to prospective jurors, and to seated jurors. Sadly, aside from jury nullification, there are other illegal mechanisms available to foster what I will call in this and subsequent CCC newsletter editions “jury-duty interference.” Under Heading V.B in my seventh CCC newsletter edition (posted on April 15), after discussing “Indirect, Trump-Situational Statements Made by Trump” that encouraged members of the jury pools in his criminal prosecutions to engage in jury nullification, I wrote the following:

Moreover, many of Trump’s public statements, especially when viewed in the context of actions taken by some of his supporters that were, or appear to have been, instigated by those statements, have given members of the relevant jury pools in Trump’s criminal cases reasons to fear for their safety and the safety of members of their family.

All of the abovementioned forms of public statements Trump has made serve to encourage prospective and seated jurors who have been exposed to the statements to engage in jury nullification, or to engage, out of fear, in conduct which yields the same results as jury nullification does: voting for acquittal even though they believe, based solely on the evidence properly admitted by the judge at trial and on the law as provided by the judge, that the prosecution has proved his guilt beyond a reasonable doubt.

(Emphases added.)

I should note here that the “fear” that members of the relevant jurors pools, as well as prospective and seated jurors in a particular Trump criminal trial, can experience may involve not only their safety and that of their family members, but also a fear that Trump and/or his supporters will publicly make defamatory statements, whether true or false, about those jurors and their family members, and then those statements will be spread everywhere, including on social media and by the news media--even by anti-Trump or neutral members of the news media. After all, both when Trump has been president and also when he has not been president, Trump has made it a standard practice to make defamatory public statements--usually false statements--about those who displease him in some way.

D. Bribe Offers

Explicit or implicit threats, as well as statements intended to increase the odds that the jury will include one or more persons who will attempt to engage in jury nullification, are not the only forms of ‘jury-duty interference’—about which I orally warned some subscribers to my CCC newsletter editions some months back—that may be employed with respect to the Trump criminal trials. There are also explicit or implicit statements offering bribes: the third matter on which I focused in my talks with those subscribers.¹

As Justice Merchan noted in quoting from a New York statute on page 2 of his March 7 order :

"a court may, for good cause shown, . . . issue a protective order . . . where the court determines that there is a likelihood of bribery, jury tampering or of physical injury or harassment of the juror."

(Ellipses added.)

As far as I know, no such statements regarding bribery have been reported in the media in connection with the Trump criminal trials. Nevertheless, it is hard to imagine that such statements are not in the cards in one or more of the Trump trials. Even when Trump’s liberty, and his chances of winning an upcoming presidential election which he was favored to win, were not at stake, Trump was perfectly willing to quite openly engage in an attempted coup against the American government, culminating in his encouragement of an insurrection on January 6, 2021 which he knew, and even desired, would cause, and in fact did cause, serious personal injury and even deaths. So why would he refrain from having his operatives--who are willing to lie, and some of whom are willing to fall on their swords, for him--surreptitiously bribe seated jurors so that he could avoid being convicted of crimes with which he has been charged, especially where such convictions could well lead to his incarceration and also to his defeat at the polls in November?

Moreover, according to page 86 of the Introductory Material to the Final Report of the House Select Committee to Investigate the January 6 Attack on the United States Capitol:

The Committee has substantial concerns regarding potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee. Such actions could violate 18 U.S.C. §§ 1505, 1512.

(Endnote omitted.)

If Trump or his supporters were willing to pay attorneys to try to induce witnesses to commit perjury in order to protect Trump and those connected to him--at a time when Special Counsel Smith had not yet been appointed to begin investigating Trump--then why would Trump or his supporters refrain from trying to bribe jurors who have been selected in an active criminal trial against Trump in order to induce them to ignore their sworn duty as jurors?

Indeed, as indicated under Heading III.A.3 in my sixth CCC newsletter edition (posted on April 1), Trump has an enormous, seemingly never-ending supply of money at his disposal that is earmarked to help him navigate his legal problems. So he certainly has the money available to offer bribes of such size that even very honest and upright jurors might be tempted to consider them.

E. ‘Personal’ Communications With Prospective, and Especially Seated, Jurors

1. Generally

Then there is the matter of communicating threats, bribes, or the propriety of engaging in jury nullification specifically to seated jurors, whether individually or as a group: the fourth matter on which I focused in my talks with some subscribers to the CCC newsletter.

Trump already began doing that on Truth Social last week. In between the second and third days of jury selection, Trump posted on Truth Social, "'They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury,' Jesse Watters." This, despite the fact that on March 26, Justice Merchan had issued a written gag order prohibiting Trump from “[m]aking or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.”

DA Bragg has moved for Trump to be held in contempt for that post and others. Although Bragg's filing does not mention it, not only was the post violative of the March 26 order; it also implicitly encourages Trump-leaning prospective jurors to lie so that they could get on the jury, and perhaps even to use jury nullification to hang the jury. This morning, the parties orally argued the motion before Justice Merchan, but he has not yet issued a decision.

But, as I warned those CCC newsletter subscribers a while back, there is an additional dimension of ‘jury-duty interference’ that arises once jury selection begins, and even more so once jurors are chosen to serve. That is the ‘personal’ touch: communicating directly--in person, electronically, or through intermediaries--with prospective, and, even more so, seated jurors.

Under Heading VI in my seventh CCC newsletter edition (posted April 15), I listed the following main tentative heading and its three tentative subheadings to alert readers to topics I planned to cover in future CCC editions that are part of the jury nullification series:

• What Are Trump, His Attorneys, His Supporters, and Others Reasonably Likely to Do to Encourage the Use of Jury Nullification Once Jury Selection Begins in One of His Criminal Trials and Throughout the Trial Proper?

  • Trump, His Lawyers and Their Assistants and Consultants, His Family, Witnesses, and Other Spectators in the Courtroom

  • Persons Standing, Sitting, or Driving Outside the Courthouse, or Standing or Setting Inside the Courthouse But Outside of the Courtroom

  • Persons Attempting to Contact, at Their Homes or Places of Employment, Prospective Jurors, Seated Jurors, and Their Neighbors, Friends, Co-workers, and Relatives

Those tentative topic headings actually apply, not only to ‘personal’ communications designed to have jurors engage in jury nullification, but also to ‘personal’ communications of explicit or implicit threats or bribes. The first and third subheadings obviously apply to seated jurors, although they could apply to prospective jurors. The second subheading obviously applies to prospective jurors, although it could apply to seated jurors.

2. The Mistrial Problem

Such ‘personal’ communications are not only designed to achieve ‘jury-duty interference’; they can also be designed to leave (or in any event can have the effect of leaving) the trial judge with little choice but to declare a mistrial. And the declaration of a mistrial would mean that everything would have to be done all over again, starting with an entirely new population of prospective jurors: the fifth matter on which I focused in my talks with some subscribers to the CCC newsletter.

Retrials after mistrials do not normally begin right after the mistrial is declared, and often do not begin for months. But whether or not DA Bragg wanted to begin a new trial as soon as possible, it is reasonably probable that once again he would defer to the federal D.C. prosecution.

Even if Special Counsel Smith and Judge Chutkan were not ready to try the federal D.C. case soon after a mistrial were declared by Justice Merchan, they would likely insist that their trial precede a New York retrial if there were any chance that jury selection in their case would be ready to go before the New York retrial were completed. And, as will be discussed shortly under this Heading II.E.2, there is a very good reason to expect that any New York retrial might not begin, and thus might not end, for a much longer time interval than most people would anticipate.

Why might a mistrial be declared because of ‘personal’ communications designed to achieve ‘jury-duty interference’? The most likely situation would involve the first bulleted ‘tentative’ subheading cited under Heading II.E.1 above: one or more prejudicial, inadmissible statements made within earshot of the jury in the courtroom.

Suppose that the following statement were to be uttered within earshot of the jurors during the New York trial: “Justice Merchan is being paid $10 million by Biden to ensure that President Trump is convicted at this trial so that President Trump will be robbed of his certain election victory in November!” Or how about this statement: “DA Bragg has repeatedly admitted to colleagues, friends, and relatives that he knows this prosecution is bogus, but he wants to win the case so that it will help him become the governor of New York!” And then there’s this one: “Despite what the judge, the prosecutor, or anyone else may tell them, jurors have an absolute legal right to acquit President Trump no matter what they think about the evidence, and no one can punish them for doing that.”

And what if one such ‘outrageous’ statement is uttered in the jury’s presence a number of times during the trial, or if a number of different such statements are so uttered at various points in the trial? And what if the uttering of the statements takes place shortly before deliberations begin, when the statements are likely to have their greatest effect on the jury’s verdict?

Or what if, for example, just before the jury retired to deliberate, Trump (or someone else) were to stand up and shout an outrageous statement such as, “Death to anyone who votes to convict me!” and/or “$10 million to anyone who votes to acquit me”?

In most cases, if something is said in court that the jury should not hear, then the judge merely says to the jury something like, “That answer is stricken from the record. The jury will disregard it.” That is normally all that happens in such circumstances because the law engages in a presumption that jurors follow the judge’s instructions.

But the law is not so naive as to hold that the presumption in question is irrebuttable. Obviously, certain statements can be made under certain circumstances which would be very hard for even the most diligent and self-controlled juror to completely disregard. Thus, the trial judge has the legal power to declare a mistrial in such circumstances.

However, there’s a catch. Once the jury is sworn for a criminal trial, as Trump’s was on Friday, then “jeopardy attaches.” That phrase refers to the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution, which clause was made applicable to state prosecutions as well as federal prosecutions on the basis of the Due Process Clause of the Fourteenth Amendment. And the Double Jeopardy Clause provides: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

The Supreme Court long ago held that there is an exception to the Double Jeopardy Clause for a mistrial declared on the basis of “manifest necessity.” Judges who declare mistrials on the basis of improper information that has been placed in front of the jury do so by finding “manifest necessity” in that the jury can no longer be expected to decide the case solely on the law and the facts.

But what if an appellate court disagrees with the trial court, and rules that manifest necessity did not exist in the trial in question? In fact, the defendant would have the right to have an appeal heard prior to the commencement of a retrial if the prosecution sought to retry the defendant after a mistrial was declared. That is because the Double Jeopardy Clause explicitly states that a criminal defendant has a right not “to be twice put in jeopardy” for the same crime--in other words, not to be tried twice for that crime. That is the quintessential situation where the U.S. Constitution gives a criminal defendant the right to an “interlocutory appeal”--an appeal before conviction.

So if one or more statements made by Trump (blurted out or while he is testifying), his attorneys (including in their questions), a witness, or blurted out by a spectator, present Justice Merchan with the question (a) whether “curative instructions” will be sufficient to reasonably guarantee a properly-decided verdict, or (b) whether a mistrial instead is needed, the justice will recognize that if he grants a mistrial and DA Bragg seeks to retry Trump, then:

• before the retrial began, Trump would have the right to appeal to the First Department of the Appellate Division of the Supreme Court of the State of New York; then to seek review in the New York Court of Appeals; and then to seek review in the United States Supreme Court;

• if Trump ultimately won on the interlocutory appeal at the highest level at which a court reviewed his case, then there could be no retrial; and

• even if Trump lost on the interlocutory appeal, then, unless all three levels of appellate courts acted much faster than would normally be the case, the retrial almost certainly would not be able to be completed before Election Day in November.²

So, in Trump’s case, on the one hand Justice Merchan would want to avoid calling a mistrial, because doing so could mean that any retrial might not end, and perhaps might not even begin, until after the election in November; and also because, if Trump were to win on an interlocutory appeal, then he could not be retried. But on the other hand, Justice Merchan would want to avoid giving the case to the jury if there were a substantial likelihood that one or more of the jurors would violate their oaths, whether because of jury nullification, threats, or bribe offers.

Justice Merchan would have to research the law in the New York appellate courts, as well as the law in the United States Court of Appeals for the Second Circuit³ and the United States Supreme Court, before deciding what to do. But without even doing any research, I feel confident in writing that in each and every one of those appellate courts:

• a declaration of a mistrial would very likely be upheld if, just before deliberations began, the defendant threatened jurors with death if they voted to convict, or offered a $10 million bribe to jurors who voted to acquit, as nothing the trial judge could say to the jurors could remove from their deliberating minds either enormous personal fear or an enormous, illegal incentive; and

• a declaration of a mistrial likely would be reversed if, just before deliberations began, the defendant simply said to the jurors that they had the legal right to engage in jury nullification, as the appellate courts likely would presume that the jurors would follow the judge’s curative instruction to the jury that no such right exists, and that the law prohibits the use of jury nullification.

Indeed, for the same reasons that I feel confident in writing what I wrote in those two bullet points, I also feel confident in writing, without have done any research, (a) that an interlocutory appeal would very quickly be unsuccessful right up the line were the defendant in the first bullet-point scenario Trump in his New York case, and (b) that an interlocutory appeal would pretty likely be successful, but perhaps not as quickly, in the second bullet-point scenario with Trump as the defendant in his New York case.

Consider, for example, the first bullet-point scenario. The Supreme Court granted certiorari to Trump in the disqualification case and in the immunity case, and ruled on the merits for Trump in the former case, because both cases involve(d) novel questions of federal constitutional law. But if the Supreme Court were presented by Trump with a cert. petition under the first bullet-point scenario, I would be shocked if the Court were to grant him cert., and I would try to get out of the country as soon as I could if the Court were to rule in Trump’s favor on the merits. For all the justices would have in front of them would be a totally meritless, non-novel petition presented by a person who obviously made the statement to the jury in order to provoke a mistrial, and who would make almost all of their lives relatively miserable if he were ever to regain the White House. (See, e.g., Heading C in my inaugural CCC newsletter edition.)

It must also be noted that, depending on the jurisdiction involved, Trump could be inviting serious trouble for himself by engaging in conduct such as that described in those two bullet points. He likely would be prosecutable for additional crimes, such as non-summary criminal contempt (as well as summary criminal contempt), jury tampering, and obstruction of justice.

Also, it would certainly be reasonable for the judge on the trial of those other crimes to bar Trump from the courtroom for that trial, as there would simply be no way for the judge to honestly feel confident that Trump would not try pulling a similar stunt at that trial. Being absent from an entire trial almost always hurts the defendant with the jury, and makes it harder for the defendant to assist counsel in his own defense. And the trial would be a slam dunk for the prosecution in any event: Over 100 eyewitnesses—including a judge, a court reporter, and numerous court officers—to a crime to which there would essentially be no defense.

Moreover, it would be such an egregious case of non-summary criminal contempt and/or jury tampering and/or obstruction of justice that, especially when viewed together with Trump’s statements and actions in all of his criminal and civil cases, a formidable prison sentence would be warranted.

Additionally, Trump likely would also be barred from attending any retrial in the New York case, thus making it more likely that he would be convicted at the retrial than would otherwise be the case. Again, if convicted, his sentence likely would be stiffer than it otherwise would have been.

Finally, Trump’s mistrial-causing behavior would follow him in the trials of the other criminal cases pending against him, in terms of his ability to be present in court during the trials on those cases; in terms of his ability to prevail in those cases; and in terms of the sentences he would receive upon conviction in those cases.

3. The Realistic Possibility That Trump Will Go the ‘Outrageous’ Mistrial Route in the New York Trial

Still, Trump may try one of the ‘outrageous’ mistrial stunts discussed under Heading II.E.2 above, or something similar, in the New York trial, especially toward the end of the trial.

For example, Trump may conclude that the only trial, if any, that is going to be completed before Election Day in December is in the New York case. He is especially likely to reach that conclusion if a majority of the Supreme Court justices signals during Thursday’s oral argument on the immunity issue in the federal D.C. case that they may remand the case to Judge Chutkan to make factual findings on the immunity issue--presumably meaning that she would not regain jurisdiction to proceed otherwise with that case until the entire appellate ladder were completed in reviewing those factual findings and her application of the law to those findings. (See, e.g., this (at 6:41 to 7:54).)

Trump might even conclude, presumably with little if any basis, that, in light of the statements made and questions posed by a majority of the justices on Thursday, there is at least a significant chance that the Supreme Court will dismiss the federal D.C. prosecution outright on the basis of immunity without even first remanding the case to Judge Chutkan.

In either event, a conclusion that he only has to worry about the New York trial before Election Day in November could well lead Trump to go the outrageous mistrial route in that trial based on the hope that at least one of the following three situations will come to pass:

• He manages to prevent the New York retrial from reaching completion before Election Day in November through a combination of the interlocutory appeal (see Heading II.F.2 above) and delays that he and his attorneys are able to create upon the return of the case to Justice Merchan after all levels of the interlocutory appeal are over.

• He wins, or manages to avoid a felony conviction in, the New York case.

• He wins the election in November; he is not incarcerated before Inauguration Day even if he is convicted in the New York case, primarily because, even if he were to receive a carceral sentence, almost all observers seem to believe that he would be granted bail pending appeal; once he is inaugurated, New York (and other jurisdictions) would have to wait until after he leaves the White House in January of 2029—assuming that he does leave then—before they could incarcerate or try him; and, once in the White House in 2025, he not only shuts down the pending federal prosecution, but he also shuts down the state prosecutions by having the Department of Justice arrest, prosecute, and obtain long carceral sentences on Trumped-up charges against all of the prosecutors, judges, and witnesses in the state cases. See, e.g., this (at 6:04 to 6:35):

Of course, it’s also entire possible that before deliberations begin in the New York trial, Trump will freak out--out of fear that he will be convicted in that trial, then lose the election, and then lose other trials as well and therefore spend the rest of his life behind bars--and thus go the outrageous route. That possibility is increased by the fact that there is already reason to suspect that Trump is suffering from significant mental problems which the burdens of the trial and the other legal and political thickets he is in could greatly exacerbate. (See Heading II.B.2 in my fourth CCC newsletter edition (posted on February 28).)

F. How Do You Solve a Problem Defendant Like Donald Trump?

In any event, whether Trump, or one or more persons acting on his behalf, goes the ‘outrageous’ mistrial route or tries some more modest method of putting Justice Merchan between a rock and a hard place in the mistrial context (see Heading II.E.2 above), one must remember what I wrote under Heading II.A above: that I orally told some subscribers to my CCC newsletter months ago that there is no cause for alarm “if everyone involved does what they should and must do.” That still applies.

As I also orally told those subscribers, there are a number of things that people can, should, and must do in order to prevent a mistrial in the Trump criminal trials while at the same time preserving a strong likelihood that all twelve jurors will do their duty to render a verdict based solely on the evidence and the law. That was the sixth and final matter on which I focused in my talks with those subscribers.

Headings II.F.1 and II.F.2 below identify the two major goals which the judge presiding over the trial of a defendant like Trump must energetically strive to achieve. The bullet points below those two headings will set out various methods by which the judge can achieve those goals, and which the judge therefore should consider using. (Similar methods should already have been used in protective orders and gag orders well before the case approached the jury selection stage.)

1. Maintaining the Anonymity of the Seated Jurors

First, the judge must do everything within his or her legal power to maintain the anonymity of the seated jurors. If the judge does so, then (a) the jurors will have little if any cause to fear (1) that they or their family members will face retribution if they vote to convict the defendant, or (2) that they or their family members (or neighbors, friends, coworkers, etc.) will be pestered by anyone for information, or otherwise, during or after the trial, and (b) there will be little if any opportunity for anyone to try to bribe the jurors into voting to acquit the defendant.

Among the methods the judge should consider using, after having performed the necessary research to confirm that using them would not be prohibited in the jurisdiction in question, are:

• having the names and addresses of prospective and seated jurors unknown to the defendant, the attorneys, the news media, the public, and each of the other prospective and seated jurors;

• excluding the news media and the general public from attending jury selection, while making redacted transcripts of the jury selection available to them at appropriate intervals;

• outside the presence of the prospective jurors, ordering the defendant and the attorneys and their staffs (including consultants) in the courtroom not to divulge to anyone (except each other) anything that occurs during jury selection, at least not until the jury is discharged;

• outside of the presence of the prospective jurors, ordering the attorneys not to ask certain specified questions during jury selection that would unnecessarily risk identifying the prospective jurors;

• outside of the presence of the prospective jurors, advising the defendant and the attorneys and their staffs (including consultants) of the matters concerning the court’s contempt powers set forth in the six bolded bullet points under Heading II.F.2 below;

• providing prospective jurors with advance guidance as to what potentially identifying information they should not reveal during jury selection;

• sua sponte (that is, even if no objection is raised by an opposing attorney) ordering a juror not to answer a question posed by an attorney during jury selection, or ordering the juror to only answer so much of the question;

• providing special transportation and entrance to, and exit from, the courthouse for the seated jurors; and

• coordinating with the administrative judge, other court officials, prosecutors, and the police to provide undercover police surveillance of the residences of the seated jurors (without the knowledge of those jurors) from the point when they are selected to serve on the jury at least until the point when the jury is discharged.

2. Preventing ‘Jury-Duty Interference’

Second, the judge must do everything within his or her legal power to prevent anyone and everyone from engaging in illegal, or otherwise improper, acts of ‘jury-duty interference’--in other words, acts which increase the likelihood that one or more jurors will vote to acquit the defendant even if the juror is convinced that the prosecution has proved the defendant’s guilt beyond a reasonable doubt. (See Heading II.C above.) Such activity on the judge’s part would include (unless prohibited in the relevant jurisdiction as revealed through legal research):

• prior to the commencement of jury selection, making arrangements with the administrative judge, other court officials, the Secret Service, the police, and local jail officials so that if the court were to hold Trump in summary contempt and sentence him to a term of incarceration, then Trump could immediately be treated like any incarcerated defendant on trial, depending on the length of the sentence: being held in a cell in the courthouse during the day and in a local jail at night and on weekends, except that he would be present in court while the trial proceedings were occurring (except to the extent that his in-courtroom behavior warranted his removal from the courtroom);

• prior to the commencement of jury selection and outside of the presence of the prospective jurors, advising in open court the defendant, the attorneys, and anyone else in the court assisting them:

  • that the court expects its orders to be obeyed to the letter;

  • that if anyone has any doubts about whether something they might say or do might violate one of the court’s orders, then that person must have the court clarify the situation before the person engages in the statement or action in question;

  • that the court will not hesitate to find any person in contempt if the court believes it warranted;

  • that the court will not hesitate to use any and all available and appropriate remedies, including incarceration, in cases of contempt, regardless of who the contemnor is, and regardless of whether or not any party requests or opposes a particular remedy;

  • that in deciding whether to impose incarceration instead of a fine upon finding any person in contempt, the court will consider the extent to which fines are unlikely to deter the person from again violating one of the court’s orders during the course of the trial;

  • that the court’s contempt powers are exclusive of the prosecutor’s power to prosecute instances of non-summary criminal contempt, jury tampering, and obstruction of justice whether they occur inside or outside of the courtroom;

  • that except when the defendant is testifying:

    • he may not speak loudly enough for even one of the jurors to hear a word he says;

    • he may not make any sounds or gestures with any part of his body or with any objects which at least one of the jurors might hear or see which could reasonably be understood by the juror to be an attempt on the defendant’s part to communicate some idea, position, feeling, or belief to someone other than his attorneys; and

    • the court will seriously consider removing the defendant from the courtroom, for the remainder of trial, if necessary, if he violates those orders, in addition to the court’s power to hold him in contempt; and

  • of the specific matters (upon which the court may already have ruled) which may not be referred to in any manner by any person in the courtroom which might possibly be heard or seen by even one of the jurors; and

• before each witnesses testifies, and in the absence of the jury, advising the witness in open court:

  • of those specific matters which no one may mention within earshot of the jury;

  • that if the court deems it appropriate, it will hold a hearing to investigate who, if anyone, should be held in contempt if a witness refers to any of those specific matters while on the stand; and

  • of the matters concerning the court’s contempt powers set forth in the six bolded bullet points listed earlier under this Heading II.F.2;

• at the beginning of each portion of the trial before any prospective or seated jurors are present in the courtroom, advising everyone seated in the parts of the courtroom reserved for accredited members of the news media and non-news media spectators:

  • that while in the courtroom, they must remain silent and not communicate with anyone in any manner, except they may quietly inform a court officer if there is a medical or similar emergency, and except that accredited member of the news media may use their cell phones to silently write and send texts;

  • that the court has both the power and willingness to cite for summary contempt those who violate the court’s orders, and to punish contemnors with incarceration, and not simply fines, where the court deems it appropriate; and

  • that the court’s contempt powers are exclusive of the prosecutor’s power to investigate and prosecute instances of non-summary contempt, jury tampering, and obstruction of justice, whether they occur inside or outside of the courtroom;

• advising the prospective jurors at the outset of jury selection:

  • not only that they must swear or affirm, under the penalties prescribed for perjury, “to tell the truth, the whole truth, and nothing but the truth” when answering the questions posed to them during jury selection, but also that the requirement that they tell “the whole truth” means that they may not try to avoid giving answers that might disqualify them or lead an attorney to excuse them from service on the jury, such as by trying to construe the wording of questions in a narrow or strained manner; and

  • that if they are selected to serve on the jury, then they will be required to swear or affirm, under the penalties prescribed for perjury, that as to each count in the indictment, if, at the end of the trial, and based solely on the law as provided to them by the judge and the evidence which the judge has admitted, they believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt as to that count, then they must vote “guilty” as to that count, and that they must vote “not guilty” as to that count if they believe that the prosecution has not proved the defendant’s guilt as to that count beyond a reasonable doubt;

• as part of the swearing in of the selected jurors, having them swear or affirm, under the penalties prescribed for perjury, that, as to each count of the indictment, if, at the end of the case, and based solely on the law as provided to them by the judge and the evidence which the judge has admitted, they believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt as to that count, then they will vote “guilty” as to that count, and that if the defendant’s guilt has not been proven beyond a reasonable doubt as to that count, then they will vote “not guilty” at to that count;

• instructing the seated jurors prior to the opening statements of counsel:

  • that they must refrain from discussing any aspect of the case with anyone, and from listening to or watching anyone discuss the case, including their fellow jurors, until the judge submits the case to them for deliberations, at which point they may, and must, discuss the case with each other in order to try to reach a unanimous verdict if possible; and that they may only discuss the case with other persons after the judge discharges them from jury service; and

  • that they must immediately report to the judge in writing, through their foreperson or the bailiff:

    • if anyone makes any attempt to interfere in any manner with their, or with any of the other jurors, doing their sworn duty to find the defendant guilty if, and only if, his guilt has been proven beyond a reasonable doubt; and

    • if the juror believes that anyone is otherwise behaving improperly in any manner; and

• before giving the case to the jurors for deliberations, repeating to them the instruction that, based solely on the law as provided to them by the judge and the evidence which the judge has admitted, they must vote “guilty” as to each and every count in the indictment as to which they believe that the prosecution has proved the defendant’s guilt beyond a reasonable doubt, and that they must vote “not guilty” as to any count as to which they do not believe that the defendant’s guilt has been proved beyond a reasonable doubt; and

• throughout the trial, following through on all of the admonitions set forth above about what persons may or may not do during the trial, including the judge’s use of the contempt power when and how it is appropriate to do so.

III. What Will Follow in Part II of This Two-Edition CCC Newsletter Miniseries on the Decreased Likelihood That This NYS Criminal Trial Will Result in a Conviction--Especially an Affirmed Felony Conviction

In the next, ninth CCC newsletter edition (which will be Edition C in the series on jury nullification), I will complete this two-edition miniseries on the decreased likelihood that this NYS criminal trial will result in a conviction--especially a felony conviction.

The initial portion of that ninth edition will examine the extent to which Justice Merchan has fallen short, and seems likely to continue to fall short, with respect to many of the items I listed under Heading II.F above; while also explaining that other people--especially members of the prosecution team and members of news media--can fill some of the gaps. The latter portion of that edition will remind reads of the apparent reasons why DA Bragg agreed to defer to the feds in terms of the order of trying Trump’s criminal cases--even though the New York indictment was the first one issued against Trump; and then will begin to explain why, not only is it less important than most people think that the New York trial (or any of the Trump criminal trials) reach a conclusion before Election Day in November, but placing major importance on such a timely completion can actually be harmful.

IV. Photograph

This is a picture I took in the White Mountains of New Hampshire in 2014; I took it during my first trip using a digital (SLR) camera:

Are you able to identify the white building depicted in the photo? The building is quite famous, actually.

Be seeing you,

Brian

1. When a threat or a bribe attempt is involved, then the interference with the juror’s doing his or her legal duty is caused by a person other than the juror who is the target of the threat or bribe attempt. But when jury nullification is involved, then the jury him or herself is the one who causes the interference with the juror’s doing his or her own legal duty.

2. Even were Trump to lose at every level on that interlocutory appeal and then were to be convicted upon retrial, he presumably would be able to challenge his conviction in the federal courts if his appeals from the conviction in the New York appellate courts on other grounds were unsuccessful. That is because a Supreme Court denial of a petition to review a case is not considered a denial on the merits, and essentially every state convict has the right to seek “habeas corpus” in federal court after exhausting all of his or her remedies in state court.

3. If Trump were to lose on the interlocutory appeal and then were to be convicted upon retrial, then if he lost in the state appellate courts on his appeal on other grounds from that conviction, then he presumably could seek a writ of federal habeas corpus to review, not only that conviction, but also to review the denial of his double-jeopardy claim in the state courts. (See Endnote 2.) The application for that writ would be filed in the United States District Court for the Southern District of New York--where the E. Jean Carroll civil cases against Trump were tried--and any appeal from the denial (or grant) of the writ by that federal district court would go to the Second Circuit, and, possibly afterward, to the Supreme Court. And if Trump were to prevail in the federal courts on the double-jeopardy claim, then not only would the conviction be vacated, but he could no longer be tried in New York for the conduct covered by the original New York indictment.