Where’s the Jury Charge? Andrew McCarthy
https://www.nationalreview.com/corner/wheres-the-jury-charge/
It is now Friday evening at the start of the long Memorial Day weekend, so it’s getting safer to assume that we will not be getting the jury charge — i.e., the legal instructions that Judge Juan Merchan will give the jury prior to deliberations — in former president Donald Trump’s Manhattan criminal trial.
Interesting thing about that. It’s obvious that Judge Merchan does not want to give the commentariat an opportunity to pore over and publicly dissect what he plans to say. But that raises the question of why Merchan sent the jurors home after both sides rested on Tuesday, giving them a full week to marinate in the intense out-of-court publicity and feel pressure from family, friends, and acquaintances. (The jurors are anonymous as far as the public record is concerned, but it would be naïve to believe their identities are unknown to many people.)
Why didn’t the judge proceed with closing statements, the jury charge, and deliberations until a verdict was reached, as is customary in criminal trials? Presumably, he did not want to risk the wrath and potential defections if the jury were forced to deliberate during a holiday weekend. (If any commitments were made to the jury at the start of the trial about not working over this weekend, I have not seen that reported.) I believe the judge has been putting his thumb on the scale in favor of the prosecution, and experience teaches that when juries are inconvenienced, they tend to blame the government and the court; they may sometimes blame the defendant if it seems his lawyers are stalling, but they generally grasp that the defendant is not a voluntary participant in the trial and has the least control over its scheduling.
I want to make another point, though. If the judge does not want to make the jury charge public because of the intense media coverage, that can only be because of fear that the jurors might be exposed to that media coverage. Otherwise, there would be no downside to making public what ought to be, and routinely is, made public. If the big concern is intense media coverage, however, then why would Merchan send the jury home for a week outside the courtroom, where they’re apt to be bludgeoned by media coverage and other outside pressures? Why not have kept them in the courtroom working and shielded them from publicity and outside pressures until a verdict is reached?
Finally, there is the small matter that somehow, over a year after the indictment, after five weeks of testimony, and on the verge of closing arguments, we still have never gotten a clear explanation of exactly what crime Trump was allegedly attempting to commit or conceal when he allegedly falsified his business records with intent to defraud. Under the constitutions of New York and the United States, that is not supposed to happen.
My operating theory is that District Attorney Alvin Bragg has understood from the start that he has no authority to enforce federal law, and that if he planted his feet by acknowledging that this is precisely what he is trying to do, the blowback would be fierce. Hence, he did not give notice of the charge in the indictment (putting the defendant on notice being one of the main points of an indictment); he has been cagey ever since about what the “other crime” is that supposedly exacerbates what is ordinarily a misdemeanor records charge into 34 felonies in Trump’s case; and even now the jury charge is being held back — courtesy of the ever-indulgent Judge Merchan — because we have to assume that will include what has been eschewed to this point, namely: a definitive statement of what the charges are and what the prosecutors must prove to establish them beyond a reasonable doubt.
I guess we’ll find out next week . . . hopefully before summations. But in this proceeding, who knows?
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