After 20 days, 22 witnesses, and intermittent fireworks in the courtroom, Donald Trump’s secret trial is meeting in New York. The case will soon be in the hands of the jury.
Who has the merit at this critical moment?My assessment, after personally attending a large part of the trial, is that it is the prosecution that is going to lose.
With the constant warning that it only takes one jury to block a unanimous guilty verdict (and that the law places the greatest burden on prosecutors), the case, as presented, puts prosecutors in the driver’s seat ahead of next week’s closing arguments.
The prosecution’s good fortune has been to provide a compelling and credible narrative that leads to only one credible conclusion: that Trump is guilty of the charges against him.
The defense, on the other hand, has taken a scattershot aimed at undermining the credibility of all prosecution witnesses, especially Michael Cohen, Trump’s former lawyer and organizer. But what Trump’s lawyers have failed to do is provide a counter-narrative, a compelling story. enough to leave jurors with moderate doubts about the veracity of the explanation of the facts.
Of course, offering such a competitive story is not the legal responsibility of the defense. The ruling will tell jurors that if they have moderate doubt about the prosecution’s case, they will have to vote in favor of acquittal.
But my experience as a litigator suggests a difference between autonomous doubt about one or more witnesses and broader doubt about the justification of fees: an alternative argument that juries find credible. This is the kind of defense put forward, for example, by Senator Robert Menendez. , who claims his wife is to blame.
From the first day of testimony, the prosecution presented a compelling story. It begins with an August 2015 assembly involving Trump, Cohen and tabloid editor David Pecker, who explained it to the jury from the podium, in which the parties agreed on a plan. to suppress negative stories about Trump.
And, of course, ahead of next year’s election, a number of scandals had to be neutralized before Trump from the political damage. These episodes are similar to Acts II and III of the script, taking positions along the lines drawn through Pecker’s testimony.
Hope Hicks’ testimony, brief but harsh, given her unwavering service to Trump for a long time and her apparent candor despite her reluctance to harm her former boss, seemed to bring her to tears. It demonstrated in dramatic terms that Cohen and Allen Weisselberg, then the Trump’s leading financial official, allegedly failed to invent a scheme to pay adult film actor Stormy Daniels without Trump’s approval.
The prosecution corroborated in advance what its last and most important witness, Cohen, was going to say. At the same time, prosecutors encouraged their own witnesses to denigrate Cohen, cutting expectations before he spoke.
When he did, Cohen was low-key, receptive, and personable. With few exceptions, he accepted the insults uttered by the defense and explained most of the discrepancies in his account by explaining that he had been recounting the event since he left Trump’s fold.
Some weak issues in Cohen’s testimony gained a lot of attention, and it’s only natural for the media to focus on the dramatic moments. But the jury will most likely weigh the evidence in the context of the overall narrative and the overall conduct of the witness.
Most importantly, juries, like all of us, make holistic judgments about credibility, which is the core and soul of the jury system. By taking the measure of the other people who pass before them, they decide whether their stories are fundamentally trustworthy, despite the shortcomings of the messengers. And all the stories in this case (not just Cohen’s, but also those of other erroneous witnesses like Pecker and Daniels) are coherent and ring true.
It follows that the impertinence of Robert Costello, a defense witness who muttered his war of words with the rulings of Judge Juan M. Merchan probably drew the jury’s attention more than the flaws in Cohen’s largely uniform presentation, especially when Merchan strongly rebuked. Costello’s buffoonery demagoguery.
The prosecution’s cross-examination of Costello and Cohen and Daniels’ redirection were empty and transparent demolitions of the defense’s arguments. Trump’s team is more meandering and prone to stray shots, lacking more than they hit.
I believe the defense still has a loophole that largely goes unnoticed: the murky legal mandates for deciding felons’ fees. The fees require prosecutors to prove that Trump caused the alleged falsification of documents to commit some other crime. Prosecutors have proposed 3 other applicants for this other crime, each with defects. I was able to see the jury, which includes two lawyers, look very carefully at the legal orders and conclude that the prosecutor had not met their expectations. And in any case, the factor will be appealed.
But any attraction is far from being millennial. By then, Trump will be president, giving him plenty of chances to escape his responsibilities, or he will be a wasted candidate in three other criminal trials. This trial is increasingly likely to be the only chance for a jury to be held for the first time if a former president is a criminal. As for the final act, I like the chances of him being found guilty.
Harry Litman is the host of the “Talking Feds” podcast and the Talking San Diego. @harrylitman
Subscribe to accessSite Map
Followe
MORE FROM THE L. A. TIMES