On Jury Instructions

or why are we waiting until Tuesday for closing arguments

A reader asked why it was going to take essentially a week to do closing arguments in Donald Trump’s Porn Star Payoff case.

The prosecution closed its case on Monday morning and the defense put on two witnesses, one terrible (Robert Costello) and one pointless (Costello’s paralegal who showed the phone bills documenting the conversations between Costello and Michael Cohen) — basically Monday afternoon.

With the testimonial aspect of the case done, why wasn’t closing argument done on Tuesday.

Two words.

Roughly 80% of successful appeals rely upon mistakes with jury instructions and the jury charge to get convictions overturned.

The standard jury charge in New York State runs 55 pages and takes about 30 minutes or so to read out loud. Add in the the specifics of the crimes charged and the prosecution, the defense, and The Donald must sit and listen to Judge Juan Merchan address the jury for about a hour. No one can enter or leave the courtroom during this process

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The defense has a couple of optional instructions that can be put in or omitted — most notably the instruction regarding the defendant opting not to testify.

It’s worth noting here that jury instructions come after closing arguments; so if Todd Blanche opts to keep the above instruction out but intimates in his closing Trump couldn’t testify, he’ll invite the judge advising him that that instruction will be read. And that will lead to Blanche getting reported to the NYS Disciplinary Board and Donald Trump having a potential appeal.

No, Todd Blanche is not going to risk disbarment or a suspension, but he might toe the line. And that’s why jury instructions are such fodder for appeals. The smallest error invites appellate review.

Why? Donald Trump’s case notwithstanding, the state has a decided interest in having its incarcerated population understand that they had a fair trial and/or that they knowingly entered into a plea agreement (which includes an admission of guilt).

But, let’s get back to the question. Why next Tuesday?

First, there’s the fact that Wednesday has been a regularly scheduled break for the court in this case.

Second, it’s not unusual for lawyers arguing over jury instructions in a sizable case to take up a full day. That was yesterday.

Third, the judge in this case as well as the DA are focused on making this case appeal prove. Yeah, they could do the closing on Thursday; but that kind of leaves the jury deliberating either late Thursday for a couple of hours or starting deliberations on Friday morning before Memorial Day weekend.

Criminal defense attorneys are a quirky lot — they don’t like cases going to jury deliberation close to dinner time or on Fridays — particularly before a holiday weekend.

What will happen tomorrow and Friday?

The judge is going to button up his instructions with case law and real time factual context to make the case appeal proof.

Ditto for the DA.

Unfortunately, my impression of the case is that Trump’s legal team has plenty of motivation to force a mistrial.

Between the Supreme Court’s dragging its feet on presidential immunity, the legal fiasco created by Aileen Judge Cannon in the Mar-a-Lago documents case, and the appeal of Judge Macafee’s decision not to remove DA Fani Willis from election interference case in the Georgia; the Porn Star Payoff case will be the only one tried before November.