Might as well live in the Congo…



Judge Merchan has instructed the jury they do not need to have a *UNANIMOUS* verdict in order to convict former President Donald J. Trump.

“One thing in particular that the judge said the jurors could do. He delivered what is being called really the pinnacle of all of this. There is no need to agree on what has occurred. They can disagree on what the crime was among the three choices.”

“This means they could split 4-4-4 and the judge would still treat them unanimously. What does that mean?”

“Outrageous. In a normal criminal case every statutory crime has what we call elements of the offense. Like in a bank robbery case you have to rob – it has to be a financial institution, you have to show intent,” said former prosecutor Andrew McCarthy.

“Those are the things the jury has to agree on unanimously that they were proved beyond a reasonable doubt. Here what we’re doing is taking the element that actually makes this a felony, because remember falsification of records is normally a misdemeanor in New York. What makes it a felony is that you are concealing or committing another crime.”

“And here the judge is telling them they don’t have to agree about what the other crime is under circumstances where that not only is what makes this a felony, makes it a four-year potential prison penalty rather than a year or less, but it is also what gets us into the courtroom.”

“If this had been a misdemeanor, the time to bring this case would have lapsed in 2019. The only reason they are still able to bring this case is because it’s a felony allegedly and yet now the judge is saying you know, you don’t have to agree on what the felony is.”

The jury has now gone to deliberations.

Greta van Susteren believes this is unconstitutional.

Here’s the case she cited, with the most relevant legal principles that seem to apply to the sham “hush money” case in bold:

Held: A jury in a § 848 case must unanimously agree not only that the defendant committed some “continuing series of violations,” but also about which specific “violations” make up that “continuing series.” Pp. 817-824.

(a) A jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element of the offense. However, it need not always decide unanimously which of several possible means the defendant used to commit an element. If § 848(c)’s phrase “series of violations” refers to one element, a “series,” in respect to which individual “violations” are but the means, then the jury need only agree that the defendant committed at least three underlying crimes, and need not agree about which three. Conversely, if the statute creates several elements, the several “violations,” then the jury must agree unanimously about which three crimes the defendant committed. Pp. 817-818.

(b) Considerations of language, tradition, and potential unfairness support a reading of “violations” as elements rather than means. The Government has not found any legal source reading any instance of the words “violation” or “violations” as means. To hold that each “violation” here amounts to a separate element is consistent with a tradition of requiring juror unanimity where the issue is whether a defendant has engaged in conduct that violates the law. To hold the contrary is not. The CCE statute’s breadth aggravates the dangers of unfairness that treating each violation as a means would risk. The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. The two chapters of the Federal Criminal Code setting forth drug crimes contain approximately 90 numbered sections, many of which proscribe various acts that may be alleged as “violations” for purposes of § 848’s series requirement. This consideration increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, or did not, do. Moreover, the Government may seek to prove that a defendant has been involved in numerous underlying violations, significantly aggravating the risk that jurors will fail to focus on specific factual detail unless required to do so. Finally, this Court has indicated that the Constitution itself limits a State’s power to define crimes in ways that would permit juries to convict while disagreeing about means, at least where that definition risks serious unfairness and lacks support in history or tradition. Schad v. Arizona, 501 U. S. 624, 632-633. Pp. 818-820.

(c) The Government’s arguments for interpreting “violations” as means-that the words “continuing series” focus on the drug business, not on the particular violations that constitute the business; that an analogy can be found in state courts’ interpretations of statutes permitting conviction upon proof of a continuous course of conduct without jury agreement on a specific underlying crime; that a jury unanimity requirement will make the statute’s crime too difficult to prove; and that other portions of the statute do not require jury unanimity—are not sufficiently powerful to overcome the foregoing considerations. Pp. 820-824.