Will jury selection in Trump’s New York criminal case really begin on March 25, and will the trial really last only about six weeks?–Part One
Gang,
I. Introduction
As you are probably aware, on February 15, New York State Acting Supreme Court Justice Juan M. Merchan ordered that jury selection would begin in his courtroom on March 25--less than one month from now–in Manhattan DA Alvin Bragg’s prosecution against Trump for falsifying documents in order to hide from the voting public pornographic-film actress Stormy Daniels’ claim that Trump had had extra-marital sexual relations with her. As to why Justice Merchan is called a “justice” of the New York State “Supreme Court,” as to why he is called an “Acting” justice, and as to the basic three-level structure of the New York State court system that considers indictments filed in New York City that include at least one felony charge, see this first endnote.1
You may have presumed, as I did: (a) that the reason why the New York criminal case against Trump recently reappeared out of nowhere was that it had become obvious that the D.C. trial, which had been scheduled to begin on March 4, would not begin on that date or any time soon because of the stays in that case pending the ultimate resolution of Trump’s criminal immunity claim; and (b) that Merchan and/or Bragg had decided to resurrect the New York case and slip in a trial before the D.C. trial is ready to go. The truth, though, is quite different.
In a letter dated September 1, 2023 to one of Trump’s lawyers, Merchan simply wrote:
I write as a follow-up to your letter of August 30, 2023, and our ensuing e-mails. In light of the many recent developments involving Mr. Trump and his rapidly evolving trial schedule, I do not believe it would be fruitful for us to conference this case on September 15 to discuss scheduling. Rather, I have decided to adhere to the existing schedule. We can discuss scheduling and make any necessary changes when we next meet on February 15, 2024, for decision on motions. We will have a much better sense at that time whether there are any actual conflicts and if so, what the best adjourn date might be for trial.
Accordingly, when February 15 finally arrived, the time had come for Merchan to rule on Trump’s long-pending motions to dismiss the New York case, and for a firm ruling about when the New York trial would be held. On the fifteenth, not only did Merchan issue a 30-page decision rejecting each and every one of Trump’s numerous arguments seeking dismissal of the indictment; Merchan also announced that the previously tentatively-scheduled date of March 25 for the commencement of the New York trial would be adhered to.
As NBC News explained on the fifteenth:
The judge presiding over Donald Trump's New York criminal trial on Thursday denied his bid to dismiss the charges against him and ordered his trial to proceed as scheduled next month.
The "defendant's motions to dismiss have been denied," Judge Juan Merchan told the packed Manhattan courtroom, which included the former president at the defense table. "We will move ahead with jury selection on March 25th."
He said he expected the trial would last about six weeks.
. . .
Trump attorney Todd Blanche told the judge in court that moving ahead with trial on that date would be a "great injustice" given his other legal cases, an argument the judge batted aside. "You knew about this case," he told Blanche. The lawyer maintained that date would be "election interference" because of the presidential primaries that month.
Prosecutor Matthew Colangelo noted Blanche had told his office the March 25 date would “minimize disruption” to his client because there are only a few primaries during that time, and called his current stance part of "a continued pattern to evade accountability."
. . .
Before the hearing finished, Blanche again objected to the trial date, complaining his client "will spend the next two months preparing for this trial during a campaign. It is just not something that should happen in this country."
"See you March 25th," the judge said.
. . .
Merchan had already scheduled the trial for March 25, but that date came under question after a judge scheduled the trial in Trump’s federal election interference case in Washington, D.C., for March 4. That judge, U.S. District Judge Tanya Chutkan, said publicly that she spoke to Merchan about rescheduling the New York case before she did so.
Merchan, however, never officially rescheduled the case, and now the election interference trial has been put on hold while the U.S. Supreme Court weighs whether to hear Trump's claim that presidential immunity protects him from the charges in that case.
The judge said he spoke with Chutkan last week to "discuss scheduling" and there's now no conflict with that case.
However, that Merchan has ordered that jury selection will begin on March 25 and has estimated that the trial will “last about six weeks” hardly guarantees:
that jury selection will begin on March 25;
that jury selection will take only as long as Merchan anticipates that it will;
that the trial proper–the judge’s opening instructions to the jury; the opening statements of counsel; the admission of testimonial, documentary, and other forms of evidence before the jury; the closing arguments of counsel; the judge’s final instructions to the jury; the jury deliberations; and the rendering and acceptance of the jury’s verdicts--will begin right after the jury has been selected; or
that the trial proper will take only as long as Merchan anticipates that it will.
This is not to suggest that trials--criminal or civil--always run as smoothly and quickly as the judge and attorneys involved expect that they will. But in most cases, once a firm trial date has been set by the judge, the attorneys can be counted on to speak, write, and act in good faith with respect to the estimation and implementation of the timing of the commencement of the trial and the time that the trial will take, and the parties and the public can reasonably be expected not to attempt to interfere with the implementation of that timing. In contrast, when it comes to civil or criminal litigation in which Trump is a defendant, such expectations are hardly warranted.
The question whether the New York trial will begin and end in the time frame that Merchan has ordered and anticipates can turn out to be quite significant insofar as the D.C. federal case is concerned. For the later the jury selection in the New York case begins after March 25, and the longer the trial takes beyond six weeks, then the longer the D.C. trial may have to wait to commence, and thus the greater the risk that verdicts will not be rendered and accepted in the D.C. case before the election day in November.
Moreover, I have often seen or heard it suggested that judges may be averse to commencing a Trump criminal trial that will necessarily, or will be likely to, or even simply may, overlap with virtually all, or most, or even just some, of the general-election period. So even if delays in the New York criminal trial may nevertheless allow for the possibility of the rendering and acceptance of verdicts in the D.C. case prior to Election Day, such delays could conceivably lead Chutkan to decide to not even commence the D.C. trial until after the election.
Under Heading II below, I will examine ONE of a number of ways in which Trump and his attorneys are reasonably likely2 to attempt to delay the commencement of jury selection and the completion of the trial in the New York case: making motions arguing that the commencement of jury selection, or the execution of portions of the trial proper, should be delayed because of alleged ‘unexpected’ or ‘extraordinary’ circumstances.
In upcoming editions of my Contemplating Coup Convictions (CCC) newsletter, I will examine other ways in which Trump, his attorneys, or some Trump supporters may try to delay the commencement of jury selection, or the execution of portions of the trial proper, in the New York case. The first such examination will focus on an attempt that Trump and his attorneys announced their intention to engage in almost immediately after Trump was indicted in New York almost a year ago, and then announced again on February 15 when Merchan confirmed that the trial would begin on March 25: the filing of a motion for a change of venue. Those upcoming editions will also examine ways in which Merchan and/or Bragg may need to delay the commencement of jury selection or aspects of the trial proper in order to maximize the probability that, once begun, jury selection and the trial proper will proceed in an orderly, fair, and timely manner.
Finally, under Heading III below, I will answer the questions raised under Heading VII in the January 16 edition of my CCC newsletter--questions that concerned the photograph contained in that edition--in part by including and discussing another photograph that I took on the same day that I took the original one.
N.B.: YOUR EMAIL PROVIDER MAY DECIDE THAT, BECAUSE OF THE INCLUSION OF THE PHOTOGRAPH, THIS EMAIL WILL BE “CLIPPED.” ALL YOU HAVE TO DO TO SEE THE ENTIRE EMAIL, INCLUDING THE PHOTOGRAPH, IS CLICK ON “VIEW ENTIRE MESSAGE” NEAR THE BOTTOM OF THE EMAIL.
II. Motions Which Trump’s Attorneys Might Make–Citing Alleged ‘Unexpected’ or ‘Extraordinary’ Circumstances--Which, If Granted, Would or Could Delay the Commencement or Completion of Jury Selection, or Delay the Commencement or Completion of the Trial Proper
It is beyond obvious that Trump and his attorneys have been doing almost everything imaginable, whether proper or improper, to attempt to delay the proceedings, and especially the commencement of trial, in the four pending criminal prosecutions against him. Accordingly, the closer one of those cases gets to trial, the greater the frequency of, and the greater the lack of reasonable foundation for, attempts to delay the commencement and the completion of that trial are likely to be.
Indeed, even where Trump’s liberty was not at stake, Trump and his counsel recently went to great lengths to attempt: to delay the commencement of, to interfere with the proceedings in, and to bring about the abortion of, civil trials in which he was the defendant. A close examination of two such trials is highly instructive.
A. The E. Jean Carroll Trials Recently Held in Federal Court in Manhattan
Consider the two lawsuits that E. Jean Carroll filed against Trump in federal court in Manhattan in relation to her public claim in 2018 that Trump had raped her decades earlier: one filed in November of 2019 for defamation, and one filed in November of 2022 for defamation and battery.
1. The Pretrial Proceedings in the Defamation/Battery Case
On February 7, 2023, United States District Judge Lewis Kaplan set April 25, 2023 as the date for the commencement of the trial in the second of the two lawsuits filed by Carroll against Trump. Here are excerpts from Wikipedia's discussion of the pretrial proceedings in that lawsuit:
One of the discovery disputes was over Trump's DNA. On February 10, Joe Tacopina, who had become Trump's lead lawyer in the case on January 31, 2023, said Trump would be willing to provide a DNA sample, though the discovery period had ended after three years of Carroll's lawyers requesting such a sample. Further, Tacopina stipulated that an appendix from Carroll's report (chiefly regarding her own DNA) must first be proffered and that Trump's DNA would be submitted only to be compared to the material on the dress [which Carroll was wearing at the time of alleged rape]. Carroll's lawyer asserted that the motion was a "bad-faith effort to taint the potential jury pool”. On February 15 Judge Kaplan dismissed Trump's offer as an out-of-line delay tactic. Further, the judge argued that the presence of Trump's DNA would not conclusively prove whether a rape occurred as no sperm was detected. In late March, the judge prohibited any mention of DNA evidence at the trial.
. . . In March, . . . Trump's purported "rebuttal damage expert" was rejected [by Judge Kaplan] because he did not qualify as an expert witness. . . .
. . .
On April 11 defense attorney Tacopina asked to delay the trial by a month, arguing that media coverage of the Daniels scandal would taint the jury pool. Carroll's lawyer argued that Trump "instigated (and sought to benefit from) ... much of the very coverage about which he now complains." On April 17 Kaplan agreed with Carroll's lawyer and ruled against the delay request, arguing that there was no reason to assume jury selection would be easier to conduct in May.3
On April 13 Trump's attorneys asked to reopen discovery about whether Carroll knew that her lawyer's firm had received donations from Democrat-aligned billionaire and LinkedIn co-founder Reid Hoffman. Judge Kaplan allowed discovery for the "carefully circumscribed examination of that narrow question". Trump's attorneys requested an extra month to make this inquiry, but Kaplan refused to delay the trial. On April 21 the judge sealed the information related to Hoffman's alleged contributions, as requested by Carroll's team.4
2. The Trial in the Defamation/Battery Case Held in the Spring of 2023
Here are excerpts from Wikipedia's discussion of the defamation/battery trial held in the spring of 2023:
The trial began on April 25, 2023 . . . .
. . .
. . . [O]n April 26, . . . Trump commented about the suit on Truth Social, calling it a scam and mentioning the (inadmissible) DNA evidence. Judge Kaplan warned Tacopina that Trump should stop making such comments, as they constitute a potential liability to him.
On April 27 . . . Tacopina mentioned the dress Carroll allegedly wore during the incident, leading the judge to stop testimony for the day, though Tacopina claimed he had not planned to mention the barred DNA evidence.
. . .
. . . [O]n May 2, Tacopina confirmed that Trump would not testify at the trial.
. . . [O]n May 3 Tacopina announced that Trump's team would not present a defense case. Tacopina said that, due to health concerns, they decided not to call an expert witness they had proposed.5
. . . Both the prosecution and defense rested their case on May 4. That day Trump made a statement from Ireland indicating he might come to the trial. The judge allowed Trump to move to reopen the case, but Trump did not respond by the May 7 deadline.
On May 8 closing arguments [by counsel to the jury] were made. . . . Another of Carroll's lawyers argued that Tacopina relied on rhetoric rather than evidence and cited Trump's failure to deny the charges in person, further ridiculing the idea that Carroll, Birnbach, and Martin secretly conspired to take down Trump based on the plot of an episode of Law & Order: SVU. . . . Tacopina . . . asserted that the prosecution could have called Trump as a witness but, "Instead, what they want is for you to hate him enough to ignore the facts.”
. . .
The jury reached a unanimous decision on May 9, 2023, after deliberating for less than three hours. . . . [T]he jury awarded Carroll a total of $5 million in damages from Trump.
In an appearance on CNN the day after the verdict, Trump continued to disparage Carroll; he called her a "whack job", said the trial was "rigged", denied raping Carroll and said "I didn't do anything else either", and claimed "I don't know who the hell she is." This led Carroll to consider a third defamation lawsuit against Trump concerning these comments.6
3. Pretrial Proceedings in the Original Defamation Case
On June 15, 2013, Judge Kaplan ruled that the first of the two lawsuits Carroll had filed against Trump would “beg[i]n on Jan. 15, 2024, ‘unless this case has previously been entirely disposed of.’” Here are excerpts from Wikipedia's discussion of the pretrial proceedings in that initial lawsuit:
Seeking $10 million in damages, Carroll amended her original defamation suit on May 22, 2023, to include additional comments Trump made following the verdict against him that month, both on a CNN town hall broadcast and Truth Social. After that amendment was filed, Trump made further negative remarks about Carroll on Truth Social, in which he admitted he had met her as captured by the 1987 photograph, despite having otherwise claimed (including in his 2019 official statement) that he had not.
. . .
On June 1, Kaplan denied a Trump ally's request to dismiss the case on the basis that Trump was being persecuted for being a white Christian.
Trump's team asked for the case to be dismissed partially based on free speech protections and purported presidential immunity; on June 29, Kaplan denied this request, arguing that novel defenses (e.g., absolute immunity) had been introduced too late. Trump's team appealed this decision and requested for the trial to be delayed during the appeal effort; on August 18, Kaplan denied the delay. On September 12, [Trump attorney] Alina Habba argued to a three-judge panel of the Second Circuit Appeals Court that District Court proceedings should be stayed until the appeals court "resolves whether a president may raise his immunity defense". The next day, the appeals court denied the stay request but granted an expedited appeal process . . . . During an October 23 hearing, Circuit Judge Denny Chin defended Kaplan's opinion that Trump's immunity defense had been introduced too late. On December 13, the 2nd Circuit ruled that Trump could not use presidential immunity as a defense because he had raised it too late. On January 8, the 2nd Circuit [in a unanimous en banc ruling7 declined to take up Trump's appeal again.
. . .
. . . On November 13, Trump's team moved to add "a new rebuttal expert", after the court twice rejected proposed expert witness Robert Fisher (who argued Carroll "benefitted from this public dispute"). On November 29, Trump posted on Truth Social that the Adult Survivors Act was unconstitutional, further disparaging Carroll and calling the case "election interference" (as he had said about a number of other unsettled legal matters).
On December 21, less than a month before the trial's start date, Trump's team requested a 90-day delay to allow further appeal planning (possibly including a strategy of asking for the case to be heard by the U.S. Supreme Court), citing Special Counsel Jack Smith's recent description of the question of immunity as being "weighty and consequential" in the federal criminal case against Trump for alleged election obstruction. On December 28, a three-judge panel for the 2nd Circuit Appeals Court denied the delay request.
. . .
Trump's lawyers requested on December 28 that the transcript of his October 2022 deposition be omitted as evidence from the 2024 trial because he might provide new testimony. On January 4, 2024, Judge Kaplan denied the request as frivolous. That morning, Trump posted 31 links on Truth Social (in about as many minutes and without comment) to negative stories and online posts about Carroll, as well as video clips stripped of context to make her statements about sexual assault seem fetishistic. On January 6, Trump mocked Carroll at a political rally for not screaming during the "made up" attack. . . .
On January 12, 2024, . . . the judge denied a request from Trump to delay the trial by a week so he could attend the funeral of his mother-in-law, prompting an incendiary Truth Social post. On January 13, Carroll's lawyer argued that Trump's counsel misrepresented the reason for his unavailability on January 17, as a campaign event was scheduled for that day. On January 14, the judge granted a continuance allowing Trump to testify on January 22, even if all other matters in the trial had concluded.
. . . On January 15, Tacopina withdrew from Trump's counsel. A few days later, Tacopina told MSNBC that "It was just my time," and said he had withdrawn for both personal and moral reasons.
4. The Trial in the Original Defamation Case Held in January of 2024
Here are excerpts from Wikipedia's discussion of the January 2024 trial in the original defamation case:
The trial began on January 16, 2024, with Trump in attendance . . . . Ahead of opening statements, Trump's Truth Social account made 22 posts about Carroll, which the latter's counsel cited in opening statements. Habba argued that Carroll's attackers were not inspired by Trump because Carroll was first attacked online before Trump denied her allegations. Habba insinuated that Carroll wanted "Trump to pay her for the mean tweets". The judge scolded Habba for repeating some arguments about topics he had already ruled on.
On January 17, Carroll testified and was cross-examined. Her counsel complained that during testimony, Trump could be heard saying things like "witch hunt" and "con job"; he also reportedly pounded the table. The judge warned Trump that he could force him to leave. Trump replied that he "would love it". Trump posted on Truth Social that he felt obligated to attend "every moment" of the trial, in addition to attacks on the judge and asserting that he was the one who was owed damages. Judge Kaplan corrected Habba on trial procedure multiple times, including the process of entering evidence.
Trump did not attend trial on January 18, as he attended his mother-in-law's funeral. . . . After that day's proceedings, the court adjourned for the week.
. . . On January 19, Habba requested a mistrial in this case on the basis that Carroll had deleted emails containing death threats. (Judge Kaplan eventually denied the request for a mistrial; he explained that starting the trial over again would not remedy the deleted emails.) . . .
On January 22, court proceedings ended early because a juror and Habba reported they were feeling unwell. Afterwards, Trump made numerous Truth Social posts disparaging Carroll.. . . Habba requested that trial not be held on January 23, as Trump would be involved with the New Hampshire primary that day. On the night of January 24, Trump posted 37 times to Truth Social about Carroll.
On January 25, . . . Carroll's team rested its case that day. Trump briefly testified, saying he stood by his 2022 [pretrial deposition] testimony that Carroll's claim was a "hoax" and a "con job". He also said he had never instructed anyone to hurt Carroll and (in a comment stricken from the record) that he "just wanted to defend" himself, his family and the presidency. The defense then rested its case.
Trump arrived late on January 26. As Habba talked out of turn, the judge told her she was "on the verge of spending some time in the lockup". Shortly afterward, minutes into Roberta Kaplan's closing argument, during which she argued for $12 million in damages, Trump suddenly stood up and left the courtroom.
On January 26, 2024, the jury deliberated for three hours and awarded Carroll $7.3 million in emotional damages, $11 million in reputation-related damages, and $65 million in punitive damages, totaling $83.3 million.8
B. What Sorts of Dilatory Motions Based on Alleged ‘Unexpected’ or ‘Extraordinary’ Circumstances Can We Anticipate From the Trump Defense Team in the New York Prosecution?
Simply because Judge Kaplan and the Second Circuit judges ruled as they did in the two Carroll cases as related by Wikipedia and as set forth under Heading II.A above, that hardly signifies that every one of their rulings was correct. But my discussion below--of the sorts of dilatory motions, based on alleged ‘unexpected’ or ‘extraordinary’ circumstances, that Trump’s attorneys are reasonably likely to make before Judge Merchan to delay the commencement or completion of jury selection or portions of the trial proper--would essentially have been the same even if I had not been familiar with what is written in Wikipedia about the two Carroll cases.
Rather, the Wikipedia discussions of those two cases served to confirm what I and most other experts have observed throughout the four criminal cases, and three recent civil cases situated in Manhattan, in which Trump is a defendant:
Trump and some, if not most, and perhaps all, of his attorneys recognize that in most, if not all, of those cases, his chances of success before a jury were, and are, quite slim. (Indeed, there is a saying among criminal and civil litigation attorneys, both at the trial and appellate levels, that “If you have the law, you pound on the law. If you have the facts, you pound on the facts. And if you have neither, you pound on the table.” The “pound on the table” reference is meant to suggest that when one has no other way of winning a case, one must try to somehow distract the judge and/or jury from doing their duty of strictly following the facts and the law in the case. But, as discussed under Heading II.A.4 above, it appears that while attending the second Carroll trial, Trump not only “could be heard saying things like ‘witch hunt’ and ‘con job’”; but “he also reportedly pounded the table.”)
For that reason, rather than focusing on attempting in good faith to have the cases proceed in an orderly and timely fashion consistent with evidentiary and procedural rules and the rulings of the judges involved so that the jury will decide the case solely on properly-admitted evidence and the law as set down by the trial judge, Trump and those attorneys have decided to focus on other methods, regardless of their impropriety, including the following two primary methods.
One primary method is attempting to delay the proceedings in the cases by hook or by crook.
Another primary method is attempting to place before the jury improper information in the hopes of having members of the jury vote in Trump’s favor during deliberations on the basis of such information. This can be achieved by attempting to place the information before the jury (a) while the jury is in the courtroom; (b) outside of the courtroom during jury selection or the trial proper, primarily through the news media or social media; and/or (c) outside of the courtroom even before jury selection begins, by exposing members of the jury pool to the improper information, primarily through the news media or social media--whether that information concerns a criminal or civil case which has already been tried, is currently on trial, is soon to go to trial, or is unlikely to go to trial for a long time. (To a large extent, this method is, or is related to, the strategy of “jury nullification.” In Item B.2.e on the "About" page on my CCC newsletter website, I provided an introductory discussion of that strategy, and promised that there will be a number of more detailed discussions of that strategy in future editions of the CCC newsletter. Bragg’s motion for a gag order filed on Monday addresses some of the concerns presented by that strategy.)
I will now set forth examples of the sorts of dilatory motions, based on alleged ‘unexpected’ or ‘extraordinary’ circumstances, that Trump’s attorneys are reasonably likely to make before Judge Merchan to delay the commencement or completion of jury selection or portions of the trial proper in the New York prosecution. Bear in mind, though, that Trump and his lawyers may well decide to use such delaying and other strategies much less frequently than they might be expected to do, for example, in the federal D.C. case. That is because: (a) many, if not most, experts and other news media commentators have been opining that the New York prosecution is significantly weaker than the other three; (b) such opinions are primarily based on the notion that a felony conviction of Trump in the New York case is dependent on the New York appellate courts’ agreeing with Bragg’s novel theories of the law; (c) the MAXIMUM prison sentence which Trump faces in the New York case is only four years; (d) although a significant number of Americans have been telling pollsters that they will not vote for Trump if he is convicted of a crime, those polling results are especially subject to question regarding the New York prosecution; and (e) employing in the New York prosecution the dilatory methods described below (and the jury-nullification strategies mentioned above under this Heading II.B) may make it more difficult for Trump and his attorneys to employ the same or similar methods (or strategies) in subsequent criminal trials, such as the trial in the federal D.C. case, where they are more likely to want to use them.
Here, then, are examples of the sorts of dilatory motions that Trump’s attorneys are reasonably likely to make before Judge Merchan, based on alleged ‘unexpected’ or ‘extraordinary’ circumstances, to delay the commencement or completion of jury selection or portions of the trial proper.
1. Funerals
We have already seen, under Heading II.A.3 above, how Trump tried to delay the second Carroll trial by citing his need to away from New York for an entire week in order to attend the funeral of his mother-in-law. Indeed, Trump effectively acknowledged how even his supporters would recognize the absurdity of that request, when he posted on Truth Social that he had only requested a delay in the trial on one day, not one week.
While one would not expect the opportunities to use funerals as excuses for delaying a trial to be numerous, Trump is now facing a potential four-year prison sentence in the New York prosecution–a sentence which he will not legally be able to undo by virtue of his winning reelection in November. So we may see one or more attempts to use funerals as an excuse to delay the New York criminal trial.
In the second Carroll trial, obviously it would have been reasonable for Trump to have requested a day off from the trial to attend his mother-in-law’s funeral. But there may be people not as close to him whose funerals he will cite as a reason for delaying the New York trial.
There may also be funerals held for people who are not close relatives of Trump’s, but who are close relatives of other people whose attendance at the trial is needed, such as Trump’s trial lawyer or a defense witness. (In most cases, the situation of the defense witness can be handled by simply rescheduling the witness’s testimony.)
And then there’s the question of delays of more than a day. If the deceased is a very close relative of Trump’s or of some other person whose attendance is needed at the trial, will there be a need for Trump or such other person to have time off to grieve prior to or after a funeral, or to travel outside of the country to attend the funeral?
2. Medical Problems
As indicated under Headings II.A.2 and II.A.4 above, the only mentions of illnesses in Wikipedia’s recitations of the events in the two Carroll cases against Trump were, respectively: (a) when, during the first trial, Trump’s attorneys announced that, “due to health concerns, they decided not to call an expert witness they had proposed,” and (b) when a court day during the second trial ended early because a juror and Trump’s attorney “reported they were feeling unwell.” On the other hand, those trials involved nine-member juries, in contrast with a criminal trial’s twelve-member jury; those two civil trials ran significantly shorter than Merchan anticipates that Bragg’s New York trial will run; and Trump did not have to be present for any parts of those civil trials, and wasn’t present at all at the first one.
On still another hand, the second Carroll trial was held during the heart of the cold-flu-COVID-19 season, while Bragg’s criminal trial will occur in the spring.
Ordinarily, a six-week criminal trial like that anticipated by Merchan would not run a large risk of needing much of any delay due to illness. And as for the jurors, there are normally an ample number of alternate jurors selected to step in should one of the regular jurors need to stay out for more than a day or so.
But, once again, these are not ordinary people we are dealing with. Trump baldly lies as naturally as he breathes. And he has repeatedly demonstrated that he can attract attorneys and other supporters who will baldly lie for him.
So it is certainly reasonable to anticipate that Trump’s attorneys may move to delay the commencement or completion of jury selection and/or portions of the trial proper on the ground of illness or injury suffered or sustained by, for example: Trump; Trump’s trial lawyer; a defense witness; or a close relative of Trump or one of those other persons who supposedly needs the presence of Trump, the lawyer, or the witness to be with the ailing relative for comfort, support, and the like. Accordingly, it would seem wise for Merchan to have an independent physician on call during jury selection and the trial proper to verify, if necessary, that a claimed illness or injury is as severe as it is claimed to be.
It should be noted here that it is certainly possible that Trump may become incapacitated in some manner to some extent during the trial. Despite what he and his physicians may say publicly to the contrary: He is a 77-year-old man who is obese and has heart disease; he has been publicly manifesting cognitive problems with greater frequency and intensity in the recent past; the dangers posed by those conditions can well be exacerbated by mental stress; and Trump will be living under the mental stresses of (a) a current criminal trial which carries a potential four-year prison term; (b) three additional criminal trials, with more severe potential prison terms, on the horizon; (c) the potential need to be reelected in order to avoid, or greatly postpone, the need for him to serve a prison sentence; and (d) his having just lost three civil trials, the verdicts and associated penalties of which present major financial difficulties for him.
Of course, Trump could seek to exploit those publicly-known facts about his physical and mental health. If Trump or his attorneys were to claim that he was physically or mentally unable to continue with the New York trial for some period of time, but the attorneys or Trump refused to have him independently examined, then I presume that research would reveal that Judge Merchan could legally infer that Trump was not incapacitated. (Legal research may also reveal that something similar would apply to someone other than Trump who claimed to be suffering from an illness or injury which, if the claim were true, could delay the trial.) Merchan’s having a cardiologist, psychiatrist, and neurologist on call would seem to be a wise course.
Of course, if Trump were to claim that a physical or mental condition was rendering him incapable of attending the trial for some period of time, such a claim could well hurt him at the ballot box in November, where he wants people to vote for him to be President of the United States.
Finally, it should be noted that Trump’s attorneys might move for a delay in the trial on the ground that someone close to Trump, such as his wife or one of his children, is too ill to attend the trial, and that Trump needs or wants them at the trial for support, or that they have the legal right to have the trial delayed so that they will not miss any of it. I presume that legal research will reveal that no such right exists, and that Trump would have no leg to stand on either.
3. Issues Relating to the Presidential Campaign
As discussed under Heading I above, Trump’s counsel complained to Justice Merchan on February 15 that it will be unfair for Trump to have to start trial on March 25 in light of his presidential campaigning. However, Merchan was not moved by such complaints. And, at least according to the Wikipedia recitations discussed under Headings II.A.1 through II.A.3 and especially II.A.4 above, there was only one request by Trump’s lawyers--for a single day off during the second Carroll trial--so that Trump could be involved in campaign work.
Whereas Trump was not legally required to attend the trials in his civil cases, he will be required to fully attend the criminal trials. But presumably that won’t be a problem in the New York prosecution, as it is anticipated, including by Trump's own campaign team, that he will have the Republican presidential nomination sewn up by mid-March, not long after Super Tuesday is over. Indeed, as noted under Heading I above, during the February 15 proceeding before Judge Merchan, one of Bragg’s prosecutors pointed out that Trump’s attorney had previously told Bragg’s office that “the March 25 date would ‘minimize disruption’ to his client because there are only a few primaries during that time.”
Still, it would not be surprising if Trump’s attorneys were to attempt to delay or interrupt the New York trial by citing some supposedly ‘unexpected’ or ‘extraordinary’ occurrence which requires him to absent himself from New York to deal with his presidential campaign.9
4. Announcing the Discovery of New Evidence or New Witnesses
As noted under Headings II.A.1 and II.A.3 above, Wikipedia’s recitation of events in Trump’s two Carroll civil cases reveal that Trump’s attempted use of experts was deemed wanting by Judge Kaplan, in that: (a) prior to the first trial, “Trump's purported ‘rebuttal damage expert’ was rejected because he did not qualify as an expert witness,” and (b) prior to the second trial, “Trump's team moved to add ‘a new rebuttal expert’, after the court twice rejected proposed expert witness Robert Fisher (who argued Carroll ‘benefitted from this public dispute’).”
Be that as it may, one can reasonably anticipate that whether or not alleged experts are involved, Trump’s attorneys will be seeking delays in the trial, claiming that new witnesses or new documentary or other evidence have suddenly been discovered or needed.
5. Conclusion
My listing of the four above-discussed categories of dilatory motions one can anticipate from Trump and his attorneys regarding the New York trial (see Headings II.B.1 through II.B.4 above) is hardly meant to be exhaustive. Necessity being the mother of invention, we may find that as we approach the day when jury selection is set to begin in the New York criminal prosecution, and then throughout jury selection and the trial proper, Trump and some of his attorneys will come up with new ways to try to obtain delay.
Based on the manner in which Merchan on February 15 dealt with Trump’s dismissal motions and his counsel’s objections to starting the trial on March 25 (see Heading I above), it seems that Merchan is following the leads set by Judge Chutkan in the federal D.C. trial, and Judge Kaplan in the two federal civil trials involving Carroll, in terms of how to deal with attempts to delay (or render unnecessary) trials in which Trump is a defendant. Presumably Merchan will continue to act in a similar fashion during jury selection and during the trial proper.
III. Photographs
Under Heading VII in the January 16 (second) edition of my CCC newsletter, I placed a photograph I took 40 years ago; asked if you knew where it was taken, and what it depicted; and promised to answer those questions and explain why I chose that photo for that edition.10 So, here goes.
The photo was taken in Manhattan, on the plaza of the World Trade Center. The photo depicts the Twin Towers as framed by the Ideogram, which was a steel sculpture on the plaza that to me looked like a gigantic three-dimensional parallelogram. According to Wikipedia, the Ideogram was completed on the plaza in 1972, and was destroyed, along with the Twin Towers, on September 11, 2001.
I chose that photo for the second CCC edition because, just as it was a matter of luck that I managed to be in a position to win the Rodriguez case in the Supreme Court (see Headings II through VI of the second CCC edition), it was a matter of luck that I managed to take that photograph. Although I had worked only a few blocks from the World Trade Center from January of 1980 to November of 1984, I somehow hadn’t noticed that sculpture there in the plaza. But in June of 1984, I had temporarily moved into Manhattan, and decided to take my own photo tour of lower Manhattan one weekend afternoon. So when I came upon the plaza, looking for something interesting to photograph, the Ideogram was calling out my name.
Here is a photo I took that same day 40 years ago, which enables you to see the entire sculpture, framing two other buildings than the Twin Towers:
Do you know the name of the taller building that is framed? Like the World Trade Center, it was at one time the tallest building in the world. In case you are wondering, neither in real life nor in the movies did a giant ape ever climb up to its top.
Be sure to tune in to the next, fifth edition of my CCC newsletter, wherein I’ll identify the name of that building.
By the way, the building where I worked from 1980 to 1984 that was blocks from the World Trade Center was 15 Park Row (now generally known as the “Park Row Building”). According to Wikipedia, at one time, 15 Park Row was the tallest office building in the world, and the tallest building in New York City.
Be seeing you,
Brian
In some counties in New York State such as the five that are situated in New York City, the state has three levels of courts that can consider criminal prosecutions in which at least one felony is charged.
The first, lowest level is the “Supreme Court,” which is the trial-level court. The judicial officers in the Supreme Court are called “justices.”
Each county in the state has a certain number of Supreme Court justices allotted to it by the state constitution. Normally, Supreme Court justices are elected to sit as such justices. However, because the allotted number of justices is insufficient to handle all of the cases filed in the New York City counties, judges from other courts in the state are transferred to help in those counties. Each of those transferred judges is called an “Acting Supreme Court justice.”
Merchan is an example of such a transferred judge. He is a judge of the Court of Claims, but sits as an “Acting Supreme Court Justice” in Manhattan.
The second court level is the Appellate Division of the Supreme Court, usually referred to as “the Appellate Division.” The justices of the Appellate Division must first be elected as regular Supreme Court justices. Then, during their 14-year terms, the governor can appoint them to be Appellate Division justices who sit as appeals judges.
There are four “departments” within the Appellate Division in the state. Each department covers a specified set of counties. The First Department of the Appellate Division covers only Manhattan (New York County) and Bronx County.
The Appellate Division normally hears cases via five-justice panels. There are no “en banc” proceedings in the Appellate Division.
The third and final court level in New York is the Court of Appeals. Its “judges” are appointed by the governor to 14-year terms after being confirmed by the state’s senate.
Like the Supreme Court of the United States, the Court of Appeals has discretionary jurisdiction: It normally decides which cases from the Appellate Division it will hear and which it won’t. When it agrees to review a case, all seven judges of the court hear the appeal.
As to what I mean by “reasonably likely,” see Item C.2.b.iii in the “About” page on my CCC newsletter website.
Daniels’ allegation that Trump paid hush money to hide from the public her having had sexual relations with him became public in January of 2018. Tacopina’s concern was that on March 31, 2023, it became public that Trump had been indicted by a Manhattan grand jury as a result of that allegation, and that he had been arraigned a few days after that. See this.
Endnotes, which contain citations to news media articles, have been omitted. The ellipsis in third quoted paragraph, and instances in which a period immediately follows, rather than immediately precedes, closing quotation marks, are from the Wikipedia original.
According to CNN, “Trump’s lawyer Joe Tacopina confirmed outside the presence of the jury that his legal team will not call a previously proposed expert witness due to logistical reasons related to health concerns for the witness.”
Endnotes, which contain citations to news media articles, have been omitted. Instances in which a comma immediately follows, rather than immediately precedes, closing quotation marks are from the Wikipedia original.
Endnotes, which contain citations to news media articles, have been omitted. Instances in which a period or a comma immediately follows, rather than immediately precedes, closing quotation marks are from the Wikipedia original.
Endnotes, which contain citations to news media articles, have been omitted. Instances in which a period immediately follows, rather than immediately precedes, closing quotation marks are from the Wikipedia original.
I had promised to provide all of that information in the third CCC edition, which I issued on February 12. However, as you can see later under this Heading III, the answers include a photograph that I took the same day I took the one that appeared in the second edition. I had taken the second photo to a FedEx store for them to scan it so that I could include the scanned image in the third edition.
However, FedEx scanned it as a PDF, not as a jpg. So, after I had issued the third edition, I had a friend scan it as a jpg so that I could include the jpg in this, the fourth edition.