THE LACK OF PREPARATION BY JUSTICE MERCHAN FOR THE PREVENTION OF ‘JURY-DUTY INTERFERENCE’ IN THE COURTROOM
Also, the illegality of jury nullification in New York, and Justice Merchan’s familiarity with the need to prevent jury nullification
Gang,
I. Introduction
In today’s eleventh edition of my “Contemplating Coup Convictions” (CCC) newsletter--which is also Edition C in my series on jury nullification--I will primarily cover some topics that I promised in previous editions that I would eventually cover.
Thus, under Heading VI in my seventh CCC newsletter edition (posted on April 15), I promised that in a later edition I would show that “[j]ury nullification is indeed illegal in New York.” I will make good on that promise under Heading II below.
I will follow that with a discussion under Heading III below of a recent case in which Justice Merchan displayed his recognition of the important duty of a criminal trial judge in New York to go to significant lengths to try to prevent jury nullification in the cases before the judge.
Finally, under Heading IV below, I will partially fulfill the promise I made under Heading III in my eighth newsletter edition (posted on April 23): that in a future edition, I would “examine the extent to which Justice Merchan has fallen short, and seems likely to continue to fall short, with respect to” recommendations I made in the eighth edition for how a judge faced with a sociopathic criminal defendant like Trump should proceed in an effort to prevent the use of ‘jury-duty interference’ during the trial of that defendant.
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. The Illegality of Jury Nullification in New York
III. Justice Merchan’s Pre-Trump Experience With Jury Nullification
IV. Justice Merchan’s Performance Regarding the Prevention of ‘Jury-Duty Interference’ in Court in Trump’s Case
A. Background
B. Delay in, and Lack of, Preparation for Detaining Trump, Especially Beyond Court Hours
1. Articles in the News Media
2. Observations and Inferences
C. What Difference Has the Lack of, and Delay in, Preparation Made?
D. What Difference Will It Make in the Future If the Proper Preparations Are Not Made Regarding Trump?
E. The Notion That Trump Would Welcome Going to Jail
F. Preparations Which Have Not Been Made to Prevent Persons Other Than Trump From Engaging in Jury-Duty Interference in Court
G. Keep in Mind That Trump May Feel No Need for Much More Jury-Duty Interference in the New York Trial
II. The Illegality of Jury Nullification in New York
Under Heading VI in my seventh CCC newsletter edition, I promised to discuss in a later edition the question of the illegality of jury nullification in New York State. Here, then, is that discussion.
The seven-judge New York Court of Appeals--the highest appellate court in the New York system--has made it perfectly clear that jury nullification is illegal in New York. For example:
In 1988, that court unanimously held (at page 752):
The trial court did not err in instructing the jury that, if it found that the People had proved each of the elements of the crime beyond a reasonable doubt, it “must” find defendant guilty. It is well settled that the jury's function is to apply the legal definition of the crime to the evidence and to convict if it is satisfied that each of the elements of the crime has been established beyond a reasonable doubt.
(Citations omitted).
In 1994, that court unanimously (with one judge absent) held (at page 268):
Defendant's final argument that he should have been permitted by the trial court to present the concept of jury nullification during summation is foreclosed by our holding in People v Goetz [the 1988 case examined above].
In 2006, that court unanimously held (at pages 113-14):
Defendant, in asking for the submission of the less serious charge, was obviously hoping that he could avoid conviction on the more serious one; in other words, that a jury otherwise prepared to convict him for criminal possession of a weapon in the second degree might perhaps in an exercise of mercy, or a compromise return a third-degree conviction instead. But of course defendant was not entitled to a chance at jury nullification [citing the 1988 case examined above.] In exercising its discretion, the court had to weigh competing possibilities: Would the submission of the third-degree count help the jury arrive at a fair verdict, or would it simply provide a distraction or an opportunity to split the difference?
. . . The court did not abuse its discretion in deciding that, under the circumstances, the third-degree count would probably interfere with, rather than advance, the jury's performance of its duty.
III. Justice Merchan’s Pre-Trump Experience With Jury Nullification
Justice Merchan is well aware that jury nullification is illegal in New York, and quite properly recognizes that it is his duty to do what he legally can to prevent the occurrence of jury nullification in a criminal trial before him. This was clearly demonstrated in the case of People v. Girard, 211 A.D.3d 148 (1st Dep’t 2022) (unanimous opinion), in which Justice Merchan presided over the trial.
The defendant was charged with attempted murder and other crimes in connection with a stabbing incident that arose when he was playing loud music in his apartment and the neighbor who lived in the apartment above his complained. According to the unanimous five-justice First Department of the Appellate Division of the Supreme Court of the State of New York (at page 150),
defendant testified that, as a teenager, he suffered an incident that "changed the course of [his] life" in which his "heart started racing." The People objected to continued questioning about defendant's heart condition, arguing that it was being elicited solely for sympathy. Defense counsel argued that it was relevant to defendant's physical capabilities and perception of danger, and therefore spoke to his justification defense.
The parties initially debated the evidence at sidebar. The court questioned the propriety of the evidence, stating it was its "job to ensure there is not jury nullification." It dismissed the jury so it could hold a continued discussion regarding the evidence's admissibility.
(Brackets in original. Emphasis added.)
After listening to the attorneys, Justice Merchan--according to the appellate court opinion (at page 151)--“ruled that testimony regarding the heart condition could not come in unless and until defendant gave testimony establishing a connection between the condition and the interaction with the victim.” The defendant then retook the stand; did not further mention the heart condition; and the jury unanimously found him guilty of attempted murder (and other crimes). On appeal from that conviction, the appellate court did not question Justice Merchan’s recognition of his duty “to ensure there is not jury nullification.”1
IV. Justice Merchan’s Performance Regarding the Prevention of ‘Jury-Duty Interference’ in Court in Trump’s Case
A. Background
On April 23, I posted my eighth CCC newsletter edition. It was Edition B in my series on jury nullification. It was entitled ““A CONVICTION--ESPECIALLY AN AFFIRMED FELONY CONVICTION--IN THIS NYS TRUMP CRIMINAL TRIAL NOW SEEMS LESS LIKELY THAN IT PREVIOUSLY HAD SEEMED--PART I.”
Under Heading II in that edition, structured around oral statements I had made months before to some of the subscribers to my CCC newsletter, I examined the various problems presented to a judge faced with a “criminal defendant . . . who has absolutely no moral compunctions but has an unprecedentedly large amount of monetary and other support” (see Heading I in that edition), and recommended methods a judge should consider using to deal with those problems.
Under Heading II.F in that edition, using bullet points, I set out a host of ways in which a judge, faced with a criminal defendant like Trump, can--and to the extent permissible in the judge’s jurisdiction, should and must--act to lessen the chance that the defendant will be acquitted, or will obtain a hung jury, with respect to all or some of charges in the indictment, as a result of the defendant’s employment of one or more of the three illegal strategies which I jointly refer to as the primary means of “jury-duty interference”: jury nullification, juror intimidation, and bribery of jurors. What all three have in common is that they are designed to produce acquittals or hung juries even though all twelve jurors are satisfied that the prosecution has established each element of the crime(s) charged beyond a reasonable doubt, based on the evidence admitted by the judge at trial and the law that the judge delivers to the jurors.
I broke up Heading II.F in the eighth edition into Headings II.F.1 and II.F.2. Today’s edition concerns the first four main bullet points (and their sub-bullet and sub-sub-bullet points) under Heading II.F.2 in that edition. Those bullet, sub-bullet, and sub-sub-bullet points concerned what the judge should do during jury selection and the trial proper to prevent the defendant, defense counsel, witnesses (primarily prosecution witnesses), and spectators from engaging in jury-duty interference in the courtroom.2
Here are those bullet, sub-bullet, and sub-sub-bullet points as they appeared under Heading II.F.2 in that edition, except that I have displayed the points with numerical, lower-case alphabetic, and lower-case Roman-numeral prefixes rather than bullet, sub-bullet, and sub-sub-bullet prefixes:
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 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, 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 remedies, including incarceration, in cases of contempt, regardless of who the contemnor is;
that in deciding whether to impose a fine instead of incarceration 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 and jury tampering, 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 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 on which the court has already 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; and
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.
(Italic and boldface emphases in original.)
B. Delay in, and Lack of, Preparation for Detaining Trump, Especially for More Than a Few Hours
1. Articles in the News Media
A number of articles that addressed the question of the logistics of holding Trump in custody in relation to his criminal prosecutions were published last year, in the wakes of the filing of the four indictments against him. The specific issue that those articles focused on concerned the logistics of holding Trump in custody if he were convicted by a jury.
However, on April 23 of this year--the same day that I posted my eighth CCC newsletter edition--the New York Time published this article online, and then published a version of that article in print the next day. The article has not been updated since.
According to that online article:
Even before the trial’s opening statements, the Secret Service was in some measure planning for the extraordinary possibility of a former president behind bars. Prosecutors had asked the judge in the case to remind Mr. Trump that attacks on witnesses and jurors could land him in jail even before a verdict is rendered.
. . .
Last week, as a result of the prosecution’s request, officials with federal, state and city agencies had an impromptu meeting about how to handle the situation, according to two people with knowledge of the matter.
That behind-the-scenes conversation — involving officials from the Secret Service and other relevant law enforcement agencies — focused only on how to move and protect Mr. Trump if the judge were to order him briefly jailed for contempt in a courthouse holding cell, the people said.
The far more substantial challenge — how to safely incarcerate a former president if the jury convicts him and the judge sentences him to prison rather than home confinement or probation — has yet to be addressed directly, according to some of a dozen current and former city, state and federal officials interviewed for this article.
That’s at least in part because if Mr. Trump is ultimately convicted, a drawn-out and hard-fought series of appeals, possibly all the way up to the U.S. Supreme Court, is almost a certainty. That would most likely delay any sentence for months if not longer, said several of the people, who noted that a prison sentence was unlikely.
. . .
Protecting Mr. Trump in a prison environment would involve keeping him separate from other inmates, as well as screening his food and other personal items, officials said. If he were to be imprisoned, a detail of agents would work 24 hours a day, seven days a week, rotating in and out of the facility, several officials said. While firearms are obviously strictly prohibited in prisons, the agents would nonetheless be armed.
Former corrections officials said there were several New York state prisons and city jails that have been closed or partly closed, leaving wings or large sections of their facilities empty and available. One of those buildings could serve to incarcerate the former president and accommodate his Secret Service protective detail.
Anthony Guglielmi, the spokesman for the Secret Service in Washington, declined in a statement to discuss specific “protective operations.” But he said that federal law requires Secret Service agents to protect former presidents, adding that they use state-of-the-art technology, intelligence and tactics to do so.
Thomas J. Mailey, a spokesman for New York State’s prison agency, said his department couldn’t speculate about how it would treat someone who has not yet been sentenced, but that it has a system “to assess and provide for individuals’ medical, mental health and security needs.” Frank Dwyer, a spokesman for the New York City jails agency, said only that “the department would find appropriate housing” for the former president.
. . .
Under normal circumstances, any sentence of one year or less, colloquially known as “city time,” would generally be served on New York City’s notorious Rikers Island, home to the Department of Correction’s seven jails. (That’s where Mr. Trump’s former chief financial officer, Allen H. Weisselberg, 76, is currently serving his second five-month sentence for crimes related to his work for his former boss.)
Any sentence of more than a year, known as state time, would generally be served in one of the 44 prisons run by New York State’s Department of Corrections and Community Supervision.
Then, on May 6, the Washington Post published this article. Here are excerpts:
The judge overseeing Donald Trump’s criminal trial found him in contempt of court Monday [May 6]— the 10th such violation of a gag order — and warned the former president that he was flirting with jail time if he continued to talk or post online statements about witnesses, jurors, or relatives of those involved in the case.
“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail,” New York Supreme Court Justice Juan Merchan warned from the bench. “You are the former president of the United States, and possibly the next president, as well.”
But Merchan added he would take that step if Trump’s behavior did not change.
“Your continued violations of this Court’s lawful order threaten to interfere with the administration of justice, in constant attacks which constitute a direct attack on the rule of law,” Merchan said. “I cannot allow that to continue.”
The warning came as prosecutors signaled they expected their presentation to last roughly two more weeks.
. . .
The judge had given Trump a similar warning earlier, but only in writing.3
The judge said Monday that jailing Trump would require a monumental effort involving several law enforcement agencies including the Secret Service and New York’s corrections department.
“To take that step would be disruptive to these proceedings,” he said.
Trump did not reply to Merchan’s warning.
I have not seen or heard anything in the news media providing further information on the status of arrangements for having Trump detained in a court holding cell or a jail cell if a carceral sentence were imposed as a result of his committing a criminal contempt of court.
2. Observations and Inferences
To begin with, it must be noted that the holding cells in criminal courthouses are designed and intended to hold defendants who are not on release, or who are serving carceral sentences, so that those defendants can readily be produced in court when their presence is needed. Those cells are not designed or intended to hold defendants on days when their presence is not needed in court, or to hold them overnight. And if a defendant’s sentence is more than a matter of hours, then s/he is removed by bus to a local jail for the evening and night, and then returned to the courthouse on the next day when his or her presence in court is needed.
Based on the two articles from which I quoted under Heading IV.B.1 above, and on the apparent absence of any additional input on the subject from the news media, the following six observations and inferences can be made.
First, not only did Justice Merchan fail to make the pre-jury-selection arrangements identified in Item 1 under Heading IV.A above; and not only is it apparent that, prior to the commencement of jury selection on April 15, he did not make any effort whatsoever to have those arrangements made; but it is also unclear whether he ever made any such efforts.
Second, the request made by the prosecution which is mentioned in the first quoted paragraph from the New York Times article examined under Heading IV.B.1 above was made in the penultimate paragraph of DA Bragg’s April 15 Memorandum of Law in support of his motion to have Trump held in contempt. That request stated:
And finally, this Court should warn defendant that future violations of the Court's restrictions on his extrajudicial statements can be punished not only with additional fines, but also with a term of incarceration of up to thirty days.
In other words, not only is it apparent that, prior to the day when jury selection began, the prosecution had made no attempt to have arrangements made to deal with the logistics of having Trump serve a carceral sentence during the trial; but it is unclear when, if ever, the prosecution made such an attempt.
Third, it is unclear whether any final arrangements have been made for placing Trump in a holding cell in the courthouse if he receives a carceral contempt sentence, let alone when those arrangements were finalized and precisely what they are.
Fourth, it is therefore unclear when, if ever, Trump has had reason to fear that he could immediately be taken into custody upon the imposition upon him of a carceral contempt sentence.
Fifth, it is entirely unclear whether any final arrangements have been made for placing Trump in a jail cell if he receives a carceral contempt sentence of more than a few hours, let alone when those arrangements were finalized and precisely what they are.
Sixth, it is therefore entirely unclear when, if ever, Trump has had reason to fear that he could immediately be sent to a jail cell upon the imposition upon him of a carcerak contempt sentence of more than a few hours’ duration. (I have not yet had the opportunity to research the issues of Trump’s being able to take an interlocutory appeal from a jail sentence for criminal contempt, nor of his obtaining a stay pending such an appeal.)
So we are now in a situation where jury selection has been completed, the trial proper is nearing its end, and yet it is still unclear whether even now Trump has reason to fear that he could immediately be held in a court holding cell, much less in a jail cell, if he were to continue to engage in contemptuous behavior.
In contrast, had Justice Merchan delayed the commencement of jury selection until he had seen to it that final arrangements had been made as set forth in Item 1 under Heading IV.A above, then by the time jury selection commenced, Trump would have had reason to fear that the moment he was found in contempt by Justice Merchan, he could immediately be confronted, not only with detention in a court holding cell, but in a jail cell, and for up to 30 days per violation.
And Trump’s reason for fearing immediate detention upon a contempt finding would have been even greater if Justice Merchan had followed the practices I recommended in Item 2 under Heading IV.A above, especially Items 2.c through 2.e:
. . .
prior to the commencement of jury selection, advising in open court the defendant, the attorneys, and anyone else in the court assisting them:
. . .
. . .
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 remedies, including incarceration, in cases of contempt, regardless of who the contemnor is;
that in deciding whether to impose a fine instead of incarceration 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 . . .
(Emphasis in original.)
However, it does not appear that Justice Merchan followed any of the practices recommended under Item 2.
And Justice Merchan would have had more than sufficient justification for imposing a carceral sentence--one even calling for jail time--upon Trump’s first contempt adjudication. To begin with, Trump made it perfectly clear through his behavior in court in his recent civil trials that he was perfectly willing to show his utter contempt for the judges and the judicial proceedings, not just out of court but even in court, even though it was reasonably likely that his doing so could cost him ten of millions, and even hundreds of millions, of dollars. Also, as reflected under Heading III.B in my sixth CCC newsletter edition (posted on April 1), Trump appears to have a virtually limitless supply of money to use to pay for costs stemming from the civil and criminal litigation in which he is involved. So obviously it would have been ludicrous to expect that a statutory maximum of $1,000 per contempt finding in the New York criminal prosecution could deter Trump in the slightest.
C. What Difference Has the Lack of, and Delay in, Preparation Made?
So then the questions arise: “So, what difference does it make whether or not Trump had known from the outset of jury selection that he may immediately been taken to a court holding cell, or even a jail cell, for violating an order issued by Justice Merchan, or whether he knows that now, or whether he’ll ever know that before the trial is over?”
The answer to those questions is that the lion’s share of the contempt-conviction-worthy things Trump has thus far done in the case, and all of those that he will do until Justice Merchan is ready and logistically able to immediately sentence Trump to jail time for a contempt violation, would very likely not have occurred if Justice Merchan had followed Items 1 and 2 under Heading IV.A above.
Here are things that have already happened which very likely would not have happened if Justice Merchan had followed the steps I recommended in those items:
Trump, sitting twelve feet from a prospective juror on the second day of jury selection (April 16), was “audibly gesturing” in the juror’s direction while the juror was being questioned, leading Justice Merchan to tell Trump that he would not “tolerate” Trump’s “intimidat[ing]” jurors in the courtroom. (See this at pages 126-27.)
The following evening, Trump reposted on Truth Social a post by a Fox TV host which said, “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.” (See this at page 4, para. 14.)
The morning after that--April 18--Justice Merchan granted the request of one of the selected jurors to be excused from serving, based on her concern that news-media coverage of the jury selection process had enabled people to identify her as one of the jurors. (See this at official pages 378 to 385.)
On April 22--before the first witness in the case took the stand-- a juror who had been selected on April 18 advised Justice Merchan that the juror was concerned in a manner similar to that expressed to the justice on April 18 (see the immediately-preceding bullet point), but he talked the juror into staying on the case for now. (See, e.g., this.)
On April 30 and May 6, Justice Merchan found Trump in contempt for ten acts of violating his gag orders: eight aimed at witnesses, and two, including the one cited in the second bullet-point above, aimed at jurors. (See, e.g., this and that.) Most of those violations occurred on or after April 15--the day that jury selection began.
On May 7, during Stormy Daniels’s testimony, Justice Merchan said to Trump’s attorney, “‘I understand that your client is upset at this point, but he is cursing audibly, and he is shaking his head visually and that’s contemptuous . . . . It has the potential to intimidate the witness and the jury can see that.’” (See this.)
Two things need to be said in relation to Trump’s curses and gesture toward Daniels.
First, Trump had begun to intimidate witnesses in the New York prosecution well before jury selection began. As Justice Merchan wrote in his April 1 Decision clarifying his gag order (at pages 2 to 3):
The threats to the integrity of the judicial proceeding are no longer limited to the swaying of minds but on the willingness of individuals, both private and public, to perform their lawful duty before this Court. This is evidenced by the People's representations that "multiple potential witnesses have already expressed grave concerns [. . .] about their own safety and that of their family members should they appear as witnesses against defendant." People's 3/28/24 Pre-Motion Letter. It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing defendant's recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.
(Brackets, ellipsis, and emphasis in original.)
Second, whether or not Trump’s cursing and gesturing at Daniels while she was on the witness stand would have been likely to intimidate her, it certainly would have been likely to intimidate the jurors, especially in light of Trump’s having previously acted in an intimidating manner toward a prospective juror during jury selection. (See the first bullet point above.)
Indeed, as I will discuss in a later CCC newsletter edition, of the two selected jurors who expressed concern to Justice Merchan about the likelihood that they could be identified as a result of news-media accounts of the jury-selection process, at least one of them explicitly articulated to Justice Merchan a concern about physical safety.
Moreover, it should also be noted here that under Heading II.C in my eighth CCC newsletter edition (posted on April 23), I explained:
I should note here that the “fear” that members of the relevant jurors [sic] 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 as made [sic] it a standard practice to make defamatory public statements--usually false statements--about those who displease him in some way.
So one or both of those selected jurors, as well as others among the selected jurors who did not contact the court, may have been concerned about this sort of problem (in addition to being concerned for their physical safety and that of their family members).
And, whatever the form of the fear instilled by Trump’s various contemptuous acts, the cumulative effect of those acts (and of any further such misbehavior) could well affect at least one of the jurors consciously or unconsciously when it is time for the jurors to deliberate and vote.
D. What Difference Will It Make in the Future If the Proper Preparations Are Not Made Regarding Trump?
Now let’s look at some of the things that may well happen during the remainder of the trial unless and until Trump has reason to fear the possibility of immediately being taken into custody, especially into a jail cell.
To begin with, as discussed under Headings II.E.1 to II.E.3 in my eighth CCC newsletter edition (posted on April 23), whether while testifying or from his seat at counsel table at some point shortly before, or even during, jury deliberations, Trump may blurt out threats or bribe offers to the jury.
Additionally, because Justice Merchan has not yet, and presumably will not, directly advise Trump of the topics which are not to be mentioned within earshot of the jury (see Item 2.h under Heading IV.A above), Trump, for the purpose of encouraging jury nullification, may mention them while testifying or from his seat at counsel table.
E. The Notion That Trump Would Welcome Going to Jail
Some would argue that Trump would not be deterred by the fear of going to jail because his odds of winning the November election are increased whenever he ‘plays the martyr,’ and his going to jail would constitute the ultimate martyrdom.
It has always been obvious to me that even if Trump were willing to spend a couple of hours in a court holding cell, he would not want to run the risk of spending a night, and possibly many nights and days--in a cell in a jail. Trump’s niece, psychologist Mary Trump, who knows Trump very well, takes the same position. So does Maggie Haberman ( here and there), who has interviewed Trump and has written a book about him. So does former federal prosecutor Harry Litman in one of his “Talking Feds” YouTube videos.
Indeed, how would spending time in a jail cell help Trump with the election? Trump’s fans are going to vote for him whether he is sent to a cell or not. But what about wavering voters who learn, not only that Trump has been convicted of numerous crimes--perhaps felonies--but that he is in fact already a jail bird?
Also, as bad as Trump looks in court to the jury now--falling asleep, etc.--how bad is he going to look to the jury if, as Harry Litman noted, he had to sleep in a jail cell the night before?
And what if he had to be in a jail cell for many consecutive nights, and for days when his case was not on in court? How long could Trump last psychologically, having to be either in a jail cell or in court for up to 30 consecutive days per contempt finding? And how would he look to the jury at the end of the carceral period?
Moreover, if Trump were to engage in jury-duty interference after it had become obvious that he would probably go to jail for doing so, then not only would Justice Merchan send him to jail, but the justice might have little choice but to also bar Trump from attending some or all of the remainder of the trial. And, as I noted under Heading II.E.2 in my eighth CCC newsletter edition (posted on April 23), a conviction would be all the more likely if Trump were to be absent during the trial.
F. Preparations Which Have Not Been Made to Prevent Persons Other Than Trump From Engaging in Jury-Duty Interference in Court
Moreover, it is not only Trump who may engage in jury-duty interference. (See Heading IV.A above.). Justice Merchan has not yet taken, and presumably will not take, the steps I recommended in Items 2a through 2f, 2h, 3a through 3c, and 4a through 4c under Heading IV.A above, which are designed to prevent defense counsel, defense witnesses, and Trump-supporting spectators from engaging in such interference as well.
On the matter of spectators, it is noteworthy that in recent days, more and more Congresspersons and Senators have been joining Eric Trump as spectators at Trump’s trial. One may wonder whether one or more of those federal legislators will engage in jury-duty interference on the assumption that a state judge would never try to incarcerate them for contempt.
Or they might think that they could ultimately prevail in a criminal proceeding against them for what they may say in Justice Merchan’s courtroom, by relying on the Speech or Debate Clause in Article I, Section 6 of the U.S. Constitution. After all, both former Vice President Mike Pence and Senator Lindsay Graham unsuccessfully tried to rely on expansive readings of that clause in order to prevent them from having to obey subpoenas concerning criminal investigations into the attempted coup. And Trump actually relied on that clause in his immunity arguments before the Supreme Court, even though he never was a federal legislator! (See, e.g., this at pages 77 & 164.)
But if Justice Merchan were to make it clear to all the spectators in the courtroom that an immediate carceral sentence could be imposed on any spectator who violated his orders or otherwise engaged in contemptuous behavior, those legislators might well think twice.
G. Keep in Mind That Trump May Feel No Need for Much More Jury-Duty Interference in the New York Trial
Under Heading IV in my seventh CCC newsletter edition (posted on April 15), I wrote that, for a variety of reasons, Trump would be much less likely to try to employ, much less aggressively employ, jury-duty interference in the New York criminal trial than, say, in the federal D.C. criminal trial. So the absence of appropriate preparations by Justice Merchan to prevent in-court jury-duty interference would not necessarily mean that Trump and his supporters will continue to make significant efforts at such interference.
Still, I wrote under Heading II.E.3 in the eighth edition (posted on April 23) that Trump might be more likely to engage in jury-duty interference in the New York prosecution if a majority of the Supreme Court justices signaled during the immunity oral argument last month that they might remand the D.C. case to Judge Chutkan for further fact-finding and then for full interlocutory appellate review thereafter. But while two of the justices during the oral argument (at pages 31-33, 73-78, & 161-64) did discuss the possibility of further exploration of the immunity issue upon remand if the Court did not resolve the issue based on the record currently before it, neither of them made any mention of further interlocutory review other than the possibility of a direct remand to the D.C. Circuit Court of Appeals.
On the other hand, I understand that many people believe that the New York criminal trial has gone better for Trump than had been expected--especially because, as I wrote under Heading IV in my seventh CCC newsletter edition, “chief prosecution witness Michael Cohen has carry-on baggage beyond the permissible limit.” Trump may well believe that as well. So that would cut against Trump’s feeling a need to continue to play dirty in order to get at least a hung jury.
Also, consider what Justice Merchan said in court to Trump on May 6, according to the excerpts from the Washington Post article of that date that appear under Heading IV.B.1 above. It seems to me that much of what Justice Merchan said to Trump on that date was unnecessary and perhaps unwise, especially since it may well have led Trump to believe that--putting aside the question of a carceral sentence for a contempt finding--the justice would be less likely than previously believed to impose a carceral sentence on Trump in the case of a conviction at trial. If Trump has been led to so believe, that would also leave Trump with less incentive to continue to play dirty during the trial.
So we’ll just have to wait and see how things play out.
Be seeing you,
Brian
However, the appellate court unanimously reversed the defendant’s conviction on a different ground: Without first obtaining a proper waiver from the defendant of his right to be present during the discussion of the admissibility of testimony concerning the defendant’s heart condition, Justice Merchan--in response to the suggestions made by the prosecutor from DA Bragg’s office and by the defense attorney--excluded the defendant from the discussion of that issue. 211 A.D.3d at 151-55.
Heading II.F.1 focused on the matter of maintaining the anonymity of the jurors. The last four of the eight main bullet points (and their sub-bullet and sub-sub-bullet points) under Heading II.F.2 focused on what the judge should say to the seated jurors.
That warning appeared on page 7 of Justice Merchan’s April 30 order holding Trump in contempt on nine counts. This is what the warning said:
Defendant is hereby warned that the Court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment . . . .