UNBIASED - May 30, 2024: 'Hush Money' Trial Q&A, Jury Deliberations Update, Supreme Court Releases Three New Opinions.

Episode Date: May 30, 2024

BREAKING: The Jury reached a verdict in Trump's 'hush money' trial at 4:20pm ET. As of 4:40pm ET, the jurors asked for 30 minutes to fill out the charging form. This episode does not include the verdict. 1. Supreme Court Releases Three New Opinions (0:58)2. Update on Jury Deliberations in Hush Money Trial (7:35)3. 'Hush Money' Q&A: Answering Your Questions (10:25)Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, May 30th, and this is your final news rundown of the week brought to you by Filevine, every law firm's best friend. Filevine is everything you need to manage cases, increase client communication, track billing, and manage your time. And my favorite offering from Filevine is the complete customization. You can completely customize your products to cater to your specific practice area. Personal injury attorney, no problem. Family law, no problem. Insurance defense, no problem. No matter what your practice area is, Filevine has a solution for you.

So schedule your free demo today by clicking the customized link in this episode description. And once you love what you see in the demo, you can then use code JordanIsMyLawyer, all one word, for 15% off your purchase. Being a lawyer is stressful enough, so leave what you can to FileVine. Without further ado, let's get into today's episode. We'll start with some news out of the Supreme Court, and then we'll run through a little update on jury deliberations in the Hush Money trial, and we'll finish with a Hush Money Q&A. This episode will kind of resemble yesterday's episode in the sense that we're only talking about the Supreme Court and the Hush Money trial, but those are the big stories of the day. So let's do it. Let's start with the Supreme Court.

It's a Thursday, which means that the justices released some opinions today, three to be exact. The first opinion is in a case called Cantero versus Bank of America. I'm going to keep this discussion short. I don't want to bore you too much. I can't lose you within the first couple of minutes of this episode. The question for the court in this case was whether the National Bank Act, which is a federal law, preempts the application of state escrow insurance laws to national banks. The Second Circuit Court of Appeals held that the state laws were preempted by the National Bank Act, but today the Supreme Court sent the case back to the Second Circuit, saying that it had failed to analyze whether New York's interest on escrow law is preempted in a manner that is consistent with the Dodd-Frank Act and Barnett Bank, which is an older Supreme Court

case. The decision from the justices in this case was unanimous. The second opinion is in a case called NRA v. Vulo. In this case, the NRA sued Vulo, the former superintendent of the New York Department of Financial Services, alleging that Vulo violated the First Amendment by coercing other businesses to punish or suppress the NRA's gun promotion advocacy. On appeal, the Second Circuit dismissed the NRA's case, finding that Vulo's actions constituted permissible government speech and legitimate law enforcement. Keep in mind, to justify dismissal of a case, the Second Circuit here in this case, but courts generally, have to find that the party bringing the lawsuit failed to plausibly allege a claim,

in this case, a First Amendment claim. So the NRA appealed the dismissal, and today, the Supreme Court unanimously held that the NRA did plausibly allege a First Amendment claim, and therefore the Second Circuit must consider the merits of this case. It cannot be dismissed. The third and final opinion of the day was not unanimous. This was a six to three decision along ideological lines, and it was in a case called Thornell v. Jones. So years ago, Danny Jones was convicted of two murders as well as attempted murder in Arizona. The reason he was sentenced to death rather than life without parole is because at the time of his sentencing, Arizona's law

required the court to impose a death sentence if the court found that one or more statutorily enumerated aggravating circumstances existed, and there were no mitigating circumstances sufficiently substantial to call for leniency. The court ultimately found four aggravating factors and four mitigating factors, but found that the mitigating factors weren't sufficiently substantial for leniency and therefore sentenced Jones to death. And just for clarification purposes, aggravating factors are things that tend to make a crime worse or a defendant's culpability worse, like the manner in which the crime was committed. Maybe the person killed was a child. Maybe the victim was stabbed a hundred times rather than one time, things like that. Whereas mitigating

factors are things that can reduce the seriousness of the crime or lessen the defendant's culpability. So maybe the defendant is an addict or suffered child abuse at a young age or suffers from some sort of mental disability. So that's the difference between the two. But Jones gets sentenced to death consistent with Arizona law. And after the fact, he petitions for post-conviction relief based on ineffective assistance of counsel. Now to succeed based on ineffective assistance of counsel. Now, to succeed on an ineffective assistance of counsel claim, there's a Supreme Court case called Strickland that tells us you have to show that your counsel provided a deficient performance that prejudiced you in some way. And Strickland says that the only way to show prejudice is if there is a, quote, reasonable probability that absent counsel's errors, the sentencer, in this case the judge, would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

And Strickland thereafter lays out this approach that courts must take in evaluating ineffective assistance of counsel claims and how a court should go about balancing the aggravated and mitigating circumstances. On appeal, the Ninth Circuit ruled in favor of Jones and offered him post-conviction relief. The court found that the counsel's assistance was ineffective. But today, in a 6-3 decision, with Justice Alito writing for the majority, the court ruled that the Ninth Circuit departed from the well-established rules set forth in Strickland. The opinion held that had the Ninth Circuit engaged in the analysis required by Strickland, it would have denied Jones's request for relief. The three dissenting justices, as I said, this was very much along ideological

lines. So the three dissenting justices were Justices Sotomayor, Kagan, and Jackson. Sotomayor and Kagan wrote a dissent together, which basically says the majority went too far. They agree with the majority in that the Ninth Circuit improperly ignored certain aggravating factors when it conducted the balancing test that it was required to conduct. But Sotomayor and Kagan say that the majority should have stopped there. There was no reason for the majority to reweigh the factors themselves. They should have left that for the Ninth Circuit to do and just sent the case back consistent with instruction. Justice Jackson wrote her own dissent,

finding that the Ninth Circuit did in fact satisfy its obligations in Strickland, and it was actually the majority on the Supreme Court bench that misread the Ninth Circuit's opinion. So she says the Ninth Circuit did everything right. And she wrote, sure, the Ninth Circuit's discussion of aggravating factors was short and concise, but there's no benchmark length that must be hit. In fact, she cites two, three cases out of the Supreme Court itself, which either didn't discuss aggravating factors at all or only discussed them in a single paragraph, yet still granted post-conviction relief. So that is how those justices are feeling about that case. The next set of opinions will come a week from today. I'd imagine they start doing two opinion release days each week in the month of June, but for now, the only release days that are scheduled are Thursdays.

They still have quite a few to go though, so that's why I think they'll up that to two release days a week. For the final story of the day, I'm going to assume that you listened to yesterday's episode and you are all caught up as to everything Hush Money Trial related, but there are a couple of additional things I wanted to mention about deliberations, and then we'll do a Q&A. First, I mentioned yesterday that the jurors had submitted a note to the judge requesting to rehear four pieces of testimony. Specifically, the jury requested to rehear testimony that speaks to what Trump knew or didn't know about the purchasing of Stormy Daniels' story, it would seem by this request that the jury is trying to figure out the intent element of the charges, which is their job. So that's great. It means that, you know,

they're doing what they're supposed to do. But what I failed to mention is that the jurors submitted a second note requesting to rehear jury instructions. And the reason I wanted to talk about this is because typically we wouldn't see a request to rehear jury instructions. And the reason I wanted to talk about this is because typically we wouldn't see a request to rehear jury instructions because jurors, depending on the jurisdiction, are usually allowed to take the instructions into the deliberations room with them. But New York state courts do things a little differently and don't allow the jury to do that. This can be problematic, of course. You know, when you have a straightforward case, let's just say hypothetically you have a murder case,

the jury instructions are still important, but they aren't as necessary, right? It's helpful, of course, but with a murder case, it's pretty straightforward in the sense that the defendant has to have intentionally killed someone. Obviously, depending on the degree of murder, elements change a little bit, but regardless, it's a more straightforward crime. However, when you have a case like this one where the charges are not straightforward at all, I mean, you heard yesterday's episode. It was a lot to keep track of. Even for me, I've been to law school. I'm a lawyer. And still, there are a lot of elements at play. Not only do these jurors have to remember the elements of falsifying business records, they also have to know what intent means legally. They have to remember what the New York election law that Trump is accused of violating is.

They have to understand each of the three unlawful means that the prosecution says Trump carried out in violating that state election law. And that's on top of having to understand burden of proof and reasonable doubt and evidentiary inferences and all of these other things. I mean, the jury instructions are 55 pages long and they don't get to have it in the room with them. So in a case like this, where it's a more complex set of charges, it's a challenge for the jurors to not have those instructions on hand. And that is why we saw them make the request that they did. So this morning, the jurors came back in. They were reread pages six through 35, which essentially speaks to all of those things that I just mentioned. And afterwards, they went back into deliberations again, and they've been there

ever since. I'm recording this at 3.30 p.m. Eastern time. We do not currently have a verdict. But let me answer some of your questions from yesterday's episode, a little Q&A, starting with this one. So, okay, so this says, so Trump didn't have to actually commit the second crime. He just had to conspire to do it to be found guilty. Yes and no. Let me try to make this as clear as possible. The second crime is a conspiracy crime.

So as long as he conspired, he committed the crime. Does that make sense? As long as he conspired to promote himself to office through unlawful means, whether or not he succeeded in promoting himself to office, he's guilty of the second crime. So I hope that makes a little more sense and I didn't confuse you even more. Next question. In closing arguments, why did the defense go first? Doesn't the prosecution usually present closing arguments, why did the defense go first? Doesn't the

prosecution usually present closing arguments first and then the defense goes last? Typically, yes. More often than not, in criminal cases, the prosecution will present closing arguments first and then the defense will present last. But New York law, specifically Section 26030 of New York's criminal procedure, says that the defense presents a summation of their case first and then the state. So that's why in Trump's case, being in New York state court, the defense presented closing arguments first and then the prosecution presented after. Daniel asks, I'm a little confused on how the prosecutor can charge on the basis of a federal election crime. Is there a limit? Okay, so let's remember that the federal election crime is not the basis for the charges. The two crimes at issue here are both state crimes. The first is falsifying business records, which is a state misdemeanor in and of itself. But to bring that up to a felony, still a state crime, but a felony,

the falsifying of business records has to be done with the intent to conceal or commit a second crime, which it sounds like you understand. That second crime in this case, as we just talked about, is a conspiracy to promote someone to or prevent someone from taking office by unlawful means. Also a state crime, specifically New York election law 17152. However, it's the unlawful means by which the alleged violation of the state law was carried out that you're asking about. And I can see an argument on both sides. I could see the argument that says the underlying unlawful means have to also take place within the state that charges are being brought. But I could also see an argument that says it doesn't matter if the underlying unlawful

means were done at the federal level, state level, or some other country for that matter. So long as the means were used to achieve an end, and that end is a state crime, it's sufficient. I could see that argument as well. With that said, this is certainly an issue that Trump could bring up on appeal if he's convicted, right? But just remember that the actual crimes he's charged with are both state crimes. Stephen asked, is there any precedent for the judge's instruction that says the jury can convict even if they don't agree on the actual crime? First, let's clear this up a little bit. The jury has to be unanimous as to the actual crimes. What the jury doesn't have to be unanimous for is the underlying means by which the crimes were carried out. So when we look at precedent,

in 1999, the Supreme Court differentiated between elements of a crime and means. This was in a case called Richardson v. United States, and granted, Richardson was a little bit different because it dealt with a federal criminal statute rather than a state statute, but in the majority opinion, the court held that the word violations in a criminal statute is more synonymous with the word elements than it is with means. And in making that differentiation, the court implied that elements require unanimity by a jury, but means does not. The opinion reads, quote, a jury in a federal criminal case cannot convict unless it unanimously finds that the government has proved each element of the defense. However, it need not always decide The court then goes on to provide this hypothetical robbery statute, which makes it a crime to take from a person through force or threat of force that person's property. The elements of

that crime would be one, to take, two, from a person, three, through threat of force or actual force, and four, property, meaning the prosecution has to prove all four of those elements beyond a reasonable doubt to get a conviction. Also meaning the jury has to unanimously find that the prosecution proved all of those four elements beyond a reasonable doubt to return a guilty verdict. But the court continues and says where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat.

Others might conclude that he used a knife to create the threat. Others might conclude that he used a gun, but that disagreement, a disagreement about means, would not matter as long as all 12 jurors unanimously concluded that the government had proved the necessary related element, namely that the defendant had threatened force. So what the court is saying in saying that, and again, when it comes to federal criminal statutes, is that the jury has to unanimously find the prosecution proved all elements beyond a reasonable doubt. But the jury doesn't necessarily have to unanimously agree as to the means that were used. So if we apply that precedent to Trump's case, and again, I can't stress this enough, it is different in a sense because Richardson was a federal case. Trump's case is a state case. But if we apply that to Trump's case, the second crime at issue in Trump's case is a conspiracy to promote someone to or prevent someone from taking office by unlawful means. is the same as what the court said in Richardson, then one could infer that jurors don't need to unanimously agree as to the underlying means used to conspire. But again, as I said in the question before this one, if Trump is convicted, this is certainly something he could try to argue on

appeal. But because you asked if there's any precedent, that is the precedent that is most closely related to this issue. Next question. I'm not sure the name of the person who submitted this, but the question is, could there be a directed verdict by the judge, i.e. could he overrule the jury's verdict and say guilty or not guilty if it's a hung jury? Whatever, I'll get to the hung jury in a second, but whatever the jury comes back with is what the verdict is. I mean, technically, yes, a judge can issue a directed verdict and overrule a jury's decision if he finds that the jury's decision is not appropriate, but that won't happen here. Directed verdicts like that only happen if a jury's verdict is completely irrational and unsupported by evidence. No rational jury

could reach the conclusion that it did, and that's even when the evidence is viewed most favorably to the defendant, and that's just not really a possibility here. If it's a hung jury, meaning the jury can't come to a verdict after a reasonable amount of time, then the judge could declare a mistrial and Trump could be retried. But in no instance would the judge ultimately render the verdict. I don't see a world in which Judge Merchant takes it upon himself to render a verdict. I don't think he would put himself in that situation given the nature of this case. Our last two questions are from Jacob. His first question is regarding the payment classifications. He writes, one thing I don't quite understand is the issue of marking the payments as attorney's fees versus reimbursements. I currently work at a law firm and our case expenses considered considered reimbursements, are classified as a type of

legal fee, i.e. legal fees is an umbrella for multiple types of fees, one of which is reimbursements. Yeah, so one of the reasons Trump's team maybe didn't focus on this too much is because Cohen testified that he barely did any work for Trump in 2017 when these payments were made. I think Cohen said that in all of 2017, he did maybe 10 hours of work for Trump. So perhaps that's why Trump's team didn't hammer at home that legal services can be used as an umbrella term. It's just like Cohen didn't do the work. Trump's attorneys did briefly argue that the vouchers and checks were accurate as opposed to false. But again, they didn't spend too much time on it, which leads me to believe that

they are aware that Cohen didn't actually perform a ton of legal services in the year that these payments were being made. So no matter which way you slice it, the classification of legal fees can be seen as questionable. That's what I would say. Now, Jacob's second question is this. Everywhere I have researched points towards the direction that a contribution is when a campaign receives money, not pays money. I'm confused on how a campaign paying something could be considered a contribution. In this case, it wasn't Trump's campaign paying anything. The payments at issue came from Michael Cohen, an individual paying off Stormy Daniels, and then the Trump organization as a company paying Cohen

back. So what the Federal Election Campaign Act says is that it's unlawful for any individual, i.e. Michael Cohen, to willfully make a contribution to any candidate over and above a certain amount. In 2015 and 2016, the limit was $2,700. Under the same law, it's also unlawful for any corporation, i.e. the Trump organization, to willfully make a contribution of any amount to a candidate or candidate's campaign. Moreover, any expenditure made at the request or suggestion of a candidate or his agents shall also be considered a contribution to such candidate. So what the prosecution is arguing is that the payments made by Cohen to Daniels and the reimbursements that were made by the Trump organization

were made for the benefit of Trump's campaign. And on top of that, the prosecution alleges that the payments were made at the request of Trump or Cohen or both Cohen acting as Trump's agent and therefore shall be considered a contribution to Trump's campaign as per this law. So again, it's not Trump's campaign doling out any cash. It's Michael Cohen's payment to Daniels, whether that's him individually or acting as Trump's agent and the Trump organization, the organization's payments to pay Cohen back that are at issue. Hopefully that answers your question. That wraps up this episode. I hope you learned a lot per usual, and I hope you have a

great weekend, and I will talk to you on Monday.