Donald Trump trial in New York - Why Trump Lost

 UPDATE

Two lawyers were fatal to the defense.  The case was technical. It had no emotional appeal.  Lawyers are trained to avoid emotion and follow the dots.  The dots showed a payoff and David Pecker provided the connection to the campaign.  Catch and Kill.  It didn't matter that Cohen was a bad person - Trump hired him and befriended him.  Pecker was seen as legit and he made the connection needed for conviction.  

The defense could have focused more on the blackmail aspect of Stormy Daniels' conduct.  Trump as a crime victim fighting to more generally avoid negative material released about him.  Without the strong establishment of a genuine emotional defense, lawyers tend to follow the law.

While arguments could be made that Trump didn't know or Trump was watching out for his wife and kid - he didn't prove those points and instead relied upon reasonable doubt.  However, you don't get reasonable doubt without putting something up on the board.  It is a myth that the prosecution has the burden.  They do but in reality a trial is a bar room brawl.

As I said before the verdict:

My guess is that if he is convicted the lack of cross examination of David Pecker is the issue. He could have been led to say that he (Pecker) cared about the election but he never spoke specifically with Trump about Trump's main motivations etc etc etc (one hour worth). On the other hand, not focusing on Pecker and focusing the case on Cohen and what's her name may turn out to have energized some jurors. Again, it is not possible to second guess the trial attorneys. If they win or hang the jury they are brilliant. If he is convicted, they are dumb. That is the reality of being a trial lawyer.

Pecker cuts both ways.  He personally seems focused on guiding Trump to the Presidency but is this a Trump driven focus or is it self driven?  He indicated that Trump did not buy off blackmailers and this helps the defense but the argument could be made that when he is running for President the rules change.  Still the decision to go light on Pecker may be based upon the perception that the defense wanted to maintain his credibility to play against Cohen and then seize on Pecker's helpful points as the clear path to innocence.  

It is our guess that the lawyers are leading the deliberations.  They are highlighting the Pecker testimony to establish a motive to influence the election.  They are urging conviction.  Some jurors may accept that influence on the election is PART of the motive but are adverse to finding that it was the sole motive.  How much of the motive must be the driving force (10%, 51% 99%) and how much can we guess or speculate as to what was in Donald Trump's mind is a LEGAL ISSUE.  Hence the request for instructional readback.   

This is exactly what I posted originally when I said:

Likewise, jurors who think that a “porn star” relationship is highly embarrassing may be excellent jurors because they might believe that Trump, newly married would do anything to protect his new marriage from this “humiliating” revelation.

As Donald Trump’s criminal trial begins in New York the focus should be on jury selection. Here’s why. The facts in New York v. Donald Trump are clear. He paid money to a person to keep the person silent. The money went on the books not as an extortion payoff (Trump version) or a bribe (New York’s contention) but as legal fees to Michael Cohen. Is this a crime? It may technically be a crime but it is just a misdemeanor (at worst) and a payment by a crime victim (extortion is a crime) from the defense perspective. The felony is the concept that they payment was made not as a crime victim but to influence the election. How does this affect jury selection?

Let’s look more closely at the facts. The payments were to porn actress whose film name was Stormy Daniels. This is salacious and it carries all the weight of “How do you feel about pornography?” This is a hot button topic and good jury selection will allow the Trump team to use this topic to exclude bad jurors. People who feel that porn actresses are exploited by men and who vocalize this may also feel that privileged White men (like Donald Trump) are exploitive in general. A good “voir dire” (question(s) to jurors) will use the “porn star” angle to strike for cause jurors who might be inherently hostile to Donald Trump.

Likewise, jurors who think that a “porn star” relationship is highly embarrassing may be excellent jurors because they might believe that Trump, newly married would do anything to protect his new marriage from this “humiliating” revelation. Understanding that “Stormy Daniels” trades sex for money on film makes it easy to believe that she would exploit Donald Trump’s vulnerable position as a newly married man to threaten him for money. After all, exposure of the relationship would make her more prominent and more profitable as a “brand”.

The right jury seeing these facts can see Trump as a victim and not a manipulator of an election.

There is more. Why did he lie about the payment and call it “legal fees”? Why didn’t he go to the police? These issues cannot be ignored at trial. Donald Trump’s legal team will have to gently touch on the election without triggering the concept that the payout was a payoff to protect Trump during the election. They can certainly argue that any written notation such as “Payout to silence extortion” or a report like that to the police would leak and trigger exposure. They need to carefully walk the line of “An election campaign makes exposure more likely so that the harm to Donald Trump’s wife and child are more likely.” In other words, the election increased Stormy Daniels’ power and threat but the harm to be protected against was not the election chances but instead the harm to family.

Trump’s legal team does not have to prove that the sole motivation was protection of family but it does need to raise a reasonable doubt as to whether helping Trump’s election was the real motive. Now, defense attorneys are screaming “You don’t have to prove reasonable doubt, the defense has no burden of proof!” That is technically but in a real criminal trial the defense has a real burden. Unless Donald Trump puts on a strong case, the jury will not find reasonable doubt. Remember that human beings hate ambiguity. They pick one side or the other. Rarely do they stay in the middle. Reasonable doubt exists when there is strong opposition to conviction by jurors who strongly favor your side. They force either a hung jury or their resistance to conviction ultimately creates a reasonable doubt in the jury room. Put differently, reasonable doubt in theory and reasonable doubt in a jury room are two different things.

As a legal commentator for the Michael Jackson criminal trial in 2005, Daniel Horowitz provided detailed insights into why the jury acquitted Michael Jackson on all counts. (See the NBC news story written by Daniel Horowitz explaining the Michael Jackson not guilty verdict.)

Another point to remember is that the case involves a separate $150,000 payment to Playboy model Karen McDougal. Consider this argument by the Trump team. Why are people who engaged in consensual conduct threatening to go public at this time? Again on jury selection pro New York jurors can be spotted when they focus on how Daniels and McDougal were exploited by a powerful and rich man. The defense wants people who see McDougal and Daniels as exploiting Trump’s weakness for money. They picked the time to threaten because they had maximum power.

Now you can see that these arguments cut both ways. On one hand the election cycle maximizes the exposure and harm to Trump’s family (e.g. I paid money to protect my family). On the other hand the damage to his election chances are obvious .... or are they? The defense has to argue that claims leveled against Trump for sexual “misconduct” were so rife in the campaign that one or two additional ones meant little.  But this argument cuts both ways.  The judge just barred the prosecution from mentioning any sexual assault allegations against Trump.  If he argues that one or two more allegations just add to a sea of prior complaints and hence were not worth quashing, then the nature of the prior allegations may become admissible even though they are presently excluded.   Trump's dream juror on this issue is a juror who has had an affair and covered it up to protect his (or her) family.  But how does the Trump team identify that type of juror?  Lifestyle?  How they dress?  Look for divorced people?  Watch how people interact?  What books are they reading for the few who bring books to court (vs phone surfing)?   Does the Trump team hire a private investigator to check on juror backgrounds?  

Undoubtedly this is a “Will you vote for Trump or for Biden?” question. You can’t ask that of a juror and the judge will be careful to curtail indirect questions on this point. A dangerous question for Trump’s side is the issue as to whether the juror believes that the State of New York has the right to prosecute President Trump at all. This is very dangerous question for the Trump team because New York is already highly blue in political orientation and this question will likely disqualify 20-25% of the Republican jurors.

Other factors that will help Trump are the elimination of people whose strong feelings about him personally will affect their judgment.  However, most people will then add "but I will be fair and follow the law".  Since 9 out of 10 jurors will have voted for Biden, this factor will eliminate jurors (for cause) only if they are outspoken in their contempt for Donald Trump.  NOTE: In a later blog we will address cause vs. peremptory challenges.

Just to the throw this out - do you think Trumps' legal team is running juror names through "Open Secrets" to see who they have made political contributions to?  Scanned their Twitter, X, Facebook, Instagram posts?  Are there certain job categories which are automatic "NO WAY"?  If you were Trump lawyers would you want social workers? teachers? Small business owners?   If you see a middle income White women does it matter to you if she has teenage or young adult sons?  More on these factors later.

Yet another critical issue is the "rat" issue.  How do jurors feel about Michael Cohen testifying after being 100% complicit in anything Donald Trump did.  Was he a lamb led astray?  Or was he the leader who will say anything to save his own skin?  What type of juror does the defense want in terms of Michael Cohen?  Remember, you might want one juror really strong on Stormy Daniel's and another might not resent Daniels but might strongly resent Michael Cohen.  Of course the ideal Trump juror inherently dislkes both but when assembling a jury panel STRONG feelings on key issues are more important that 100% agreement on ALL issues.

Daniel Horowitz is a national television legal commentator who covered the Scott Peterson and Michael Jackson jury trials for MSNBC and CNN.  Daniel is a certified criminal defense specialist and criminal trial lawyer.

Jury selection begins April 15, 2024.

More commentary and an amended blog to follow ................

Click Here for Daniel Horowitz on the Michael Savage Podcast discussing the Trump/Carroll case - TRUMP LEGAL ATTACKS; CAN HE BEAT THEM ALL? with Ace Criminal Defense Atty Daniel Horowitz - #678 : Amazon.ca: Audible Books & Originals