(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .



People v Trump is a slam dunk [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags']

Date: 2023-04-06

Legal pundits are fretting endlessly on the air and in print about how the NYC criminal case against Trump is “risky”, “perilous”, “testing uncharted waters” and how we can’t predict the outcome.

One thing these pundits have not done is analyze the case from the point of view of the defense. What will be Trump’s defense to the charges?

As a former criminal defense lawyer, I am virtually certain that Trump will be convicted.

Trump’s defense counsel has an impossible job. From the defense point of view, victory means 34 not guilty verdicts. If Trump is found guilty of one count, he is a convicted felon for the rest of his life.

If I were representing Trump, the basic premise from which I would start is that under no circumstances can Trump testify. He is a disaster as a witness. He does not follow the advice of his lawyers. He cannot remember what he has previously said when asked the same question. He blusters. He becomes confused. He says things without realizing what he is admitting.

Am I exaggerating?

Consider, one of Trump’s primary claims in the defamation case of E. Jean Carroll was that, “I would never have raped her because she was not my type.” Then, when shown a photo of Ms. Carroll as she appeared in 1990s, Trump testified that he thought the photo was a picture of his former wife. (You can’t make this stuff up.) Similarly, when interviewed last week by Sean Hannity about the classified documents at Mar-al-lago, Trump virtually admitted obstruction of justice even when Hannity was trying to guide him away from incriminating himself.

In the civil case of NY AG James, it was reported that Trump took the 5th amendment 450 times. There was a lot which Trump was unwilling to try to explain. To testify in his own defense, Trump would have to waive his privilege against self-incrimination and subject himself to cross examination about all of his lies.

When the prosecutor who is lucky enough to be chosen to cross examine Trump has to opportunity to use every statement made by Trump in the last 7 years against him to impeach his credibility, it would be malpractice for a defense lawyer to allow him to testify.

So, how is Trump’s attorney going to defend him from Bragg’s charges?

Trump’s defense attorneys have two choices. One option is that they can try to construct a theory of the case which explains the incriminating evidence but is consistent with Trump’s innocence. The other option is to try to attack the credibility of the prosecution’s evidence and witnesses and argue that the charges have not been proved beyond a reasonable doubt.

We have only been allowed a glimpse at Bragg’s case and it appears (from the viewpoint of a former criminal defense attorney) to be overwhelming.

Just consider, there are 11 counts of false business entries for the purpose of tax evasion. It cannot be contested that the business entries were false. The hush money payments were recorded as legal expenses so that Trump’s business could deduct them as ordinary business expenses. These charges are based on writings which cannot be contested as false or unreliable evidence.

I believe that even at this very early stage, we can rule out the defense strategy that there is a narrative that can be constructed which explains the criminal conduct and is consistent with Trump’s innocence. The only beneficiary of the hush money payments was Trump and his campaign. It is unbelievable that Cohen would have made the hush money payments on his own initiative and without Trump’s knowledge. Trump signed the checks.

I cannot think of any story which explains the evidence without Trump having committed the crimes charged. I cannot discuss every piece of evidence and demonstrate how there are no innocent explanations. But, if you think I am wrong, I look forward to your reading your innocence scenarios in the comments and I am sure that Trump’s attorneys will be grateful for the assistance.

So, that leaves the defense lawyers with option two, challenging the evidence, piece by piece, and arguing that it is not proof beyond a reasonable doubt. This is known among defense lawyers as “the shit against the wall” defense. This strategy can be effective where the evidence is largely testimonial without documents or other physical evidence as corroboration. But Bragg’s case is replete with documentary evidence—the checks, the false business entries, the tax return with the fraudulent deductions. No amount of cross examination diminishes the probative effect of documents which contain false statements.

When faced with defending accused persons who face the type of charges and the amount of evidence contained in People v. Trump, defense lawyers call the trial “a slow plea”-the outcome is inevitable. It just takes longer before the defendant is sentenced.

[END]
---
[1] Url: https://www.dailykos.com/stories/2023/4/6/2162594/-People-v-Trump-is-a-slam-dunk

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/