The Long Odds Of Trump’s Appeal

My old pal, Roger Stavis, with whom I’ve tried cases and prosecuted appeals, knows what he’s talking about. In a New York Times op-ed, he explains with the same fair and neutral perspective the mechanics of an appeal in Trump’s conviction in the New York County “hush money” case. Forget all the academics and pundits, if you want to know how it really works. Roger has spent decades in the trenches and knows what he’s talking about.

Mr. Trump’s legal team can approach his appeal on several fronts, but only one, concerning the legal theory behind the falsifying business records charge, is likely to hold out anything more than the slimmest of hopes for the former president.

In recent years, the Appellate Division, First Department, has reversed appeals from criminal convictions in only about 4 to 6 percent of cases. These long odds should come as no surprise. While the Constitution guarantees criminal defendants a fair trial, it does not guarantee them a perfect one.

Getting a reversal out of the First Department is a monumental task. In part, it’s the nature of appeals. The defendant is no longer presumed innocent and the burden shifts from prosecution to defense to make a compelling case for reversal. In general, courts protect jury verdicts. In particular, the First Department protects jury verdicts. The jury has spoken, and none of Trump’s swagger will do anything to help him overcome the very high hurdle of reversal.

To warrant reversal of a jury’s verdict on account of an error, the appellate court must find that an error of some kind led directly to the conviction. A technical error that does not rise to that level is called a “harmless error” and will not cause a reversal of a conviction.

Criminal defense lawyers hate, and I mean hate, “harmless error” analysis. It’s essentially an appellate court guessing what would have changed at trial had no error been committed. It kind of defeats the whole point of a verdict, since no one knows what would have tipped the balance in the other direction. No one knows how one shift in testimony or admission of evidence would have snowballed into an entirely different trial.

But much as we hate it, Roger is absolutely correct that it exists and very often enables the appellate court to acknowledge that a trial could have gone better, but wasn’t wrong enough to warrant reversal. If the court concludes that there was error, but it was harmless in that the evidence was otherwise more than sufficient that the error did not change the outcome of the trial, it would mean Trump’s appeal went pretty much like every other appeal. This is the norm, not some sneaky scheme to “get Trump.”

Of the many baseless issues that gained traction amongst the groundlings, venue loomed large. After all, Trump’s constant whining about how everyone in New York, the city where he lived almost his entire life, hates him and would never give him a fair trial just doesn’t cut it.

The defense counsel has cited other issues as grounds for reversal. Take, for example, Justice Merchan’s denial of a change of venue. This is more a political argument that assumes, incorrectly, that because a certain percentage of Manhattan voters did not vote for Mr. Trump, they could not possibly be fair to him. The voir dire process, in which Mr. Trump’s attorneys were fully engaged and ultimately agreed to the jury selected, undermined any claim that a Manhattan jury was incapable of being fair and impartial.

Some have argued that there was a Trump supporter on the jury, and even he voted to convict. Whether that’s true is unknown, but it’s also irrelevant. This is the system we’e created to determine guilt, and juries are remarkably serious in their deliberations. To the extent there was pre-trial publicity that poisoned the jury pool, Trump was as much responsible for it as anyone. This argument has no legs.

Critics of the case have also suggested that the defense was not made sufficiently aware of the theory behind the charges despite the Sixth Amendment right to notice of the “nature and cause of the accusation.” This is also most likely to fail, because on Feb. 15, Justice Merchan explained in a 30-page decision the precise nature of the charges to be faced at trial.

While true, I’m not as convinced that this issue doesn’t have merit in conjunction with the novel legal theory that enhanced the misdemeanor to a felony. The decision was as precise as it could be, and largely conformed to existing law in New York as Justice Merchan was obliged to follow. But the combination of Falsifying Business Records enhanced by New York Election Law 17-152 is about as circular an offense as there can be.

Alvin Bragg, the Manhattan district attorney, pursued a theory, and the crime was the violation of New York Election Law 17-152 (conspiracy to promote or prevent election), which makes it a crime to promote someone’s election to public office by “unlawful means.”

In defining “unlawful means” for the jury, Justice Merchan made reference to the tax violations, but also to the Federal Election Campaign Act, which precludes corporate campaign contributions and limits personal ones. The violation of the New York Election Law transformed this rather mundane business crime into an election interference case.

So you have falsifying business records to conceal or commit “another crime,” and then promoting election by “unlawful means.” Two vagaries don’t make precision.

When the appellate court digs into the complicated nature of these charges after Mr. Trump inevitably appeals, it must decide if the charges were unduly vague and thus may have violated constitutional due process.

This is a legitimate issue, and one that merits serious scrutiny. So Trump wins?

Our Constitution makes it difficult to convict criminal defendants by requiring proof beyond a reasonable doubt and a unanimous verdict of all 12 jurors. There is a good reason the prosecution bears such a heavy burden. But once that heavy burden is met and a unanimous jury convicts a criminal defendant, it becomes onerous to overturn the jury’s decision. That is as it should be.

That the jury has spoken weighs very heavily in an appellate court’s consideration. It may not be a guarantee of a correct verdict, or even a good trial, but that is as it should be.


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7 thoughts on “The Long Odds Of Trump’s Appeal

  1. jfjoyner3

    “Two vagaries don’t make precision.” That’s good.

    Usually, I wish I knew more about the law. This might be an exception. Discussions of the “predicate crime” for DJT’s felony indictment have occurred across media platforms an astounding number of times. More discussions than even the RICO charges in Georgia. Despite the analogous legal situations some have pointed to, it’s just puzzling why the jury instructions couldn’t simply point to that predicate crime.

    But it’s not a big deal to me. In 10 minutes or less, I can make a list of 50 politicians and federal agency people whose trial and conviction would improve Washington DC. Surely non-specific offenses increase the chances of their conviction. Bring on the prosecutions! After 5 years of prosecutions, Washington will be a better place.

  2. CRM

    ” This is the system we’ve created to determine guilt”

    Ain’t that the truth

    I kid, but multiple possibilities for “another crime” none of which requires unanimity? That’s a little frightening.

  3. John M Regan

    I don’t know where the 4 – 6% figure comes from. That may be the rate of reversal generally, but with respect to criminal convictions the figure I had was closer to 1%.

    And sure, jury verdicts are pretty much sacrosanct on appeal – when they’re convictions in criminal cases. “Too high” verdicts in favor of personal injury Plaintiffs are routinely overturned, though.

    And it should be worth mentioning that in those rare instances when a prosecutor can appeal, they obtain reversals about 50% of the time. About 50 times higher than their opponents.

    It’s a status thing. There are favored litigants and disfavored litigants. Not right, but the way it is.

  4. Mark Dwyer

    I don’t know what the success rate for prosecution appeals actually is. However, it should be much higher than the reversal rate for defense appeals. Prosecutors appeal from pretrial rulings on well-defined legal questions and in my experience rarely appeal unless they believe that they have a better-than-even chance to win. For perfectly sensible reasons, defenders very often appeal even knowing that their chances of success are essentially zero.

  5. B. McLeod

    Biden’s polling numbers have decayed to the point that papering Trump with convictions will be ineffective. Further, the maximum fine the court can assess will also have no significant impact on the election. Accordingly, the key concern for Trump at this point is to stay out of prison so he can campaign. For his counsel, that means doing what they can to mitigate sentencing, then, if the sentence is prison, pursuing a stay pending appeal. Of course they will also take every conceivable shot on appeal, but whether the appeal ultimately succeeds on its merits is part of the longer game.

  6. Skywalker

    Marchan’s jury instructions and Bragg’s novel legal theory will be reviewed de novo. The first dept won’t be looking at whether there was probable cause for the jury’s verdict. The key questions are (i) did Marchan err by instructing the jury they did not have to agree which underlying crime Trump was trying to cover up and (ii) did Bragg’s indictment effectively charge Trump with a federal crime that Bragg had no authority to prosecute.

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