Thread by @TylerMcBrien

After what feels like no time at all, I’m back at 100 Centre St with @AnnaBower and @katherinepomps for jury charges and deliberations in Trump’s NY criminal trial.

We haven’t yet seen the finalized jury instructions, so I’ll be here live tweeting it all for @lawfare 🧵⚖️

While we wait for the thrilling experience of Justice Merchan reading from a piece of paper for an hour, catch up on yesterday's marathon closing arguments with our post-court live dispatch, recorded late last night: youtube.com/live/KmaRmu_7B…

As I wait in the courtroom, the court reporter wheels a chair up the aisle, with a stack of bound papers several feet high atop it—it's the trial's complete transcript.

Someone in the gallery asks, "Is that all of it?" She nods, and some of us break into spontaneous applause.

During the May 21 pre-charge conference, the sides jockeyed over how the judge will instruct the jury on the law, how the jurors should apply the facts to the law, and what the jurors must find in order to convict.
We will hear the final version shortly.
lawfaremedia.org/article/a-witn…

After a slight snafu, I had to switch out with @AnnaBower, and it’s unclear if I’ll get in now at all, so follow her for updates in the meantime!

Just kidding! Twists and turns in this trial to the end. I'm back in the courthouse seated in the overflow room, so I'll be livetweeting it all when we get underway shortly.

So be sure to follow @AnnaBower AND me

Lots of wild speculation going on about how long the jury might take, but as @qjurecic points out, the Manafort jury, faced with an equally high number of charges and less complicated law in federal court, deliberated for four days, eventually convicting on all but a few counts.

And we're back, Trump is here (gold tie today)—it's a late start, thanks to Justice Merchan's merciful order last night.

Merchan begins discussing the proposed verdict sheet.

Steinglass raises an issue: a minor omission on the verdict sheet re: the 34th count. He says for it to be consistent with the others, it should read "bearing check number 003006."

Merchan thanks him, and brings in the jury.

Merchan greets the jurors and begins to charge them.

Good morning, I will now instruct you on the law, Merchan begins, saying he'll start with general law, which applies to this and all criminal cases. Then, charges specific to this case, then guidance on deliberations.

Justice Merchan estimates it will take 1 hour, as he has said before.

His reference to evidence or not to refer to evidence should have no bearing—in fact nothing he said in the court of this trial should give the impression that he has an opinion about this case.

His level of voice, intonation, etc, if it happens at all, is merely accidental.

You are the judgers of the facts, he says to the jury, and you will decide if the defendant is guilty or not guilty. He reminds them of their promise to be fair or impartial.

Justice Merchan reminds them their bias should have no bearing on their judgment. As a juror, I know you would not want to make such an important decision on stereotypes, attitudes, implicit biases, he says.

"Justice requires no less," he says concluding the portion warning against bias.

He continues, You will decide this case fairly on the evidence and the law as it relates to the defendant here, on trial, setting aside personal opinions or bias against the defendant.

Merchan reminds them that they may not render judgment related to speculation about sentence or punishment.

(Recall that yesterday, Blanche implored the jury not to send Trump to jail—a move for which Merchan chastised him.)

Merchan evenly, measuredly moves through more boilerplate instructions—how to consider evidence, what an inference is and how to make one, why some exhibits have redactions—then delivers the limiting instruction on Pecker and AMI's non-prosecution agreement.

He says the jury may only consider the non-prosecution and conciliation agreements to determine Pecker's credibility only—not Trump's guilt.

Similarly, the FEC investigation into Daniels payments and Cohen's related statements—used only to assess Cohen's credibility and context.

Likewise, testimony that Cohen pled guilty to FECA violations—should only be used to assess Cohen's credibility and context. Neither the fact of the FEC investigation nor the guilty plea should come into play for Trump's guilt.

Same, too, for the news articles in evidence.

Other exhibits contain hearsay (e.g. National Enquirer headlines and ), and were only accepted for the limited purpose of proving the articles were published.

Same goes for other exhibits, including text messages, and Merchan lists them slowly.

Merchan moves on to the prosecution's burden—proving the defendant's guilt beyond a reasonable doubt—and the jury's ability to use all of the evidence to determine whether they met it. The defendant is not required to prove or disprove anything—to the contrary, it's on the People

If the People fail to satisfy this burden of proof, you must find the defendant guilty, Merchan tells the jury, and vice versa.

What does proof beyond a reasonable doubt mean? The law recognizes that in dealing with human affairs, there are very few things we know with absolute certainty, so that's not required, but it's also insufficient to prove a defendant is probably guilty in a criminal case, he says

It's proof that leaves you so firmly convinced of the defendant's guilt that you have no room to doubt, Merchan elaborates.

He repeats for emphasis: No inference should be made on speculation or bias.

You alone will determine the truthfulness and accuracy of witness testimony, Merchan tells the jurors. It's the quality of testimony at play here, not the number of witnesses who testified. There's no particular formula to do this—you bring to this process all of your...

...varied experiences. In life, people do this all the time, and the same factors should be used in this case when evaluating testimony. He lists some: did the witness see/hear the events? Was testimony plausible, consistent? A witness' training/background? Witness bias? etc.

You may consider whether a witness had/did have a motive to lie, and you may consider whether that motive affected the testimony's truthfulness, the judge says. You may consider whether a witness hopes for or expects to receive a benefit from testifying, or from a certain outcome

You may consider whether a witness has been convicted of a crime or has engaged in criminal conduct, he continues, and what bearing that may have on truthfulness. Though past guilt does not have to bear on determination of truthfulness. You may consider consistency, he says.

Merchan continues to charge the jury about witness (in)consistency, telling them they may consider whether a witness changed their story, but they may also consider the logic of why a witness may have changed their story (I'm paraphrasing here).

The law permits prosecution or defense counsel to meet with a witness prior to the trial, and you may also consider that fact in your credibility assessment, the judge says. It's a normal part of preparing for a trial—it is not improper.

Merchan delivers the accessorial liability instruction:
Under our law, Cohen is an accomplice, bc there is evidence that he participated in crimes charged—but the defendant may not be convicted solely on the testimony of an accomplice, only if it's also corroborated by evidence.

The corroborative evidence is only required to help jurors determine that Cohen (the accomplice) is telling the truth about the defendant's participation in the commission of the crime, Merchan says.

He now moves on to instructions on the law applicable to the charges offenses: falsification of business records.

Two individuals can be acting in concert with each other, and he defines it further for the jury.

Under that definition, mere presence at the scene of the crime, even with knowledge of it taking place, does not by itself make a defendant criminally liable—in order to be help criminally liable of the conduct of another: 1-solicited/requested/commanded/importuned that person...

...to engage in that conduct; and 2-he did so with the state of mind required for the commission of the offense.

If you find this beyond a reasonable doubt, the person acting in concert is as guilty as the person who committed it, Merchan says.

Under our law, Merchan says, falsifying business records in the first degree includes an intent to defraud that includes an intent to commit or conceal commission of another crime.

He defines enterprise, intent (conscious objective or purpose, though premeditation not required).

Merchan offers a few questions when considering intent: What if anything did the person do or say? What result followed the conduct? Was that result a natural/probably consequence of that conduct?

He defines intent to defraud, which doesn't require intent to defraud any particular person or entity—a general intent to defraud any person or entity suffices.

It's not constricted to deprive any person of property or money, and can extend to non-economic concerns.

The People allege that the other crime the defendant intended to commit or conceal is NY election law 17-152, and he defines it: lawfaremedia.org/article/charti…

Knowledge of conspiracy doesn't by itself make the defendant a co-conspirator, Merchan says. Intent is also required. Evidence that the defendant was present when the conspiracy was hatched similarly does not by itself suffice.

When determining unlawful means, Merchan says, you may consider the following: 1-violations of FECA; 2-falsification of other business records; 3-tax fraud.

He begins with FECA: any federal office is included,
and he defines the personal and corporate contribution limits.

An expenditure made in concert with, at the suggestion of, for the benefit of, may be considered a contribution—this includes anything of value, any purchase, payment, loan, or advance, made by any person for the purpose of influencing an election for federal office.

If the payment would've been made in the absence of a candidacy, Merchan says, it should not be considered a contribution.

He then defines the press exemption—so long as the activity normal, legitimate press function, and gives the example of seeking new subscribers.

We move on to the second theory—the falsification of other business records—they may consider: 1-bank records assoc w/ Cohen's account for Resolution + Essential Consultants LLC; 2-bank records assoc with Cohen's wire to Davidson; 3-invoice from Advisory Services Inc to RC...

...; 4-1099s issued to Cohen.

Finally we move to tax fraud: it's unlawful for any person to willfully state or submit false documents to tax authorities—even if it does not result in underpayment of taxes, Merchan says.

In order for you to find the defendant guilty of falsification of biz records in the 1st degree, Merchan says, the People must prove BARD on or about 2/14/17, defendant personally or in concert made or caused false entires in the biz records of an enterprise with intent.

You have now heard me define the law of count 1—there are 33 remaining counts, the only difference is that each count refers to a different biz record and possibly different date. He reads through the counts once, but says they may ask him to repeat.

Merchan is slowly, methodically reading through all of the counts, and the documents to which they refer. You can follow along on the DA's records chart (which the jury can access during deliberations as well):

We're on the count 32 now, and I must say, this has been a nice break from frantically live tweeting. A reporter stands and stretches as Merchan reaches the count 33. Nearly there.

Finally at count 34, he repeats the required elements of falsification of biz records in 1st dgree

As we come up on an hour, Justice Merchan is still repeating the law in full. Right now he's explaining NY election law 17-152 to the jury once again.

It is becoming abundantly clear to me that Justice Merchan's 1 hour estimate included reading the jury instructions in full for 30 minutes, then again for another 30 minutes.

But hey, I'm not complaining about the break.

Merchan clears his throat, then begins to explain the difference between motive and intent: intent means conscious objective or purpose, whereas motive is the reason why a person chooses to engage in criminal conduct. Intent is a required element here, but motive is not.

However, evidence of a motive, or lack of a motive, may be considered by the jury, Merchan clarifies. You verdict on each count you consider must be unanimous, he says, and you must deliberate with all jurors: consult with and listen to each other.

Some jurors took notes, Merchan says, and should only aid your memory, not take precedence over the evidence, and you must not be influenced by notes that other jurors have taken. If there's a discrepancy btwn notes and testimony, you must ask for relevant testimony read back.

You may see any or all of the exhibits in evidence, Merchan says, simply write me a note asking for which. Same goes for any witness testimony, in whole or in part, though anything stricken will not be read back.

Under our law, the first person selected is the foreperson—though that person's opinions nor vote are more important than others. That person's duty is to sign any written note from the jury, though agreeing with the note is not required to sign it, Merchan says.

When the jury has reached the verdict—guilty or not guilty—the entire jury will return to court, and the foreperson will answer what the verdict is for each of the charged counts, the judge says.

Merchan says he will give them a verdict sheet, which lists considerations to reach each possible verdict—in addition to listing counts, he has added additional language to distinguish the counts (e.g. invoice, voucher, or check).

Finally, he says, there are a few remaining rules they must abide: 1-while here deliberating, you will be kept together in the jury room and may not leave during; 2-give cell phone or other electronic device to court officers during deliberation; 3-deliberation must only occur...

...when all jurors are gathered together; 4-during deliberation, discuss the case only among yourselves, no one else.

The plan today is to work until 4:30pm, and we will reassess the schedule as we approach that deadline, if need be.

Merchan concludes his instructions on the law and asks counsel to approach—sidebar.

One clarification—Merchan notes that when the foreperson signs jury notes, that person should sign with their jury number, not their name, as this is an anonymous jury.

After another sidebar, another clarification—apparently there's a laptop that contains all evidence, and he asks for one or two volunteers (4 and 6 volunteer) to be shown how to use that laptop.

Merchan asks the jury to step out to begin deliberations.

The alternates had stayed behind, and Merchan now thanks them for staying engaged—giving a shoutout to Alternate 3 who Merchan saw went through several notebooks over the course of the trial—and asks them to continue to stay with us.

The jury has begun deliberations in the first criminal trial of a former president, and the fate of that former president—and current Republican front runner—is now in the hands of a diverse group of Manhattanites.

Nothing to do now, but wait.

Tick, tick, tick...

Out of an abundance of caution, Merchan asks on the record whether Blanche consulted with his client, and whether Trump consented to the jury receiving the laptop with all the evidence?

Merchan also puts on the record that Jurors 4 and 6 learned how to work the laptop.

Merchan mentions that he'll stick around for a little while, in case we get a quick note, and after that he'll head upstairs. He asks that no one else leave the building either, in case we get a "quick note."

I'll go dark for now—but be sure to turn on your notifications.

ICYMI: the Court just posted the jury instructions on the docket. (apologies to anyone with notifications on if this was a verdict tease)
nycourts.gov/LegacyPDFS/pre…

Update: Merchan is back with a jury note, marked as Court exhibit 4, signed by the foreperson at 2:56 p.m., it contains four requests: 1) David Pecker's testimony re: the phone convo w/ Trump 2) Pecker's testimony re: decision not to finalize McDougal life rights 3) Pecker's...

...testimony re: Trump Tower meeting; 4) Cohen's testimony re: Trump Tower meeting.

I hesitate to speculate too much about the jury note, but the requests seem to relate to Trump’s conduct re: the conspiracy, so if they got that far that might mean they found enough to determine that Trump at least made or caused false business entries in the second degree.

Again, it's a guess, but if I were a juror, I would listen to Blanche's advice when he said that if they don’t even think Trump caused or made false entires at all, there’s no need to go any further—that would seem like the most efficient use of time.

Another note now: from 3:51 p.m., a request to rehear the jury instructions—Merchan suggests bringing the jury back to clarify whether they want the entire instructions or just a portion, and to let them know that the court is working on the prior request. No objection to that.

Before the jury returns, Merchan asks a question about the evidence laptop: does it have wifi, and is there a way to disable that ability?
It appears as though it has the ability, and it has not yet been disabled, but they will disable it tonight to be sure once they get it back

The jury has returned, and Merchan bids them a good afternoon. He reads the two notes into the record in quick succession and confirms with the jury that he read them correctly. Merchan says that we're close to finding the requested testimony, but the readback will take 30 mins

For the second request, Merchan asks if they want the instructions in part or in full, and says they don't have to decide that answer now—they can go back and deliberate about that.

Merchan then gives his usual end-of-day instructions, with a special, added emphasis, because he tells the jurors that they are at a critical phase of the trial: deliberations.

We'll get started tomorrow at 9:30 a.m., Justice Merchan says, at which point the court will continue working on the transcript request. He mentions they can work late tomorrow, until but not beyond 6:00 p.m.

He thanks them, and wishes them a good night.

Regarding the first note, Merchan asks counsel not to leave the courtroom until they have identified and agreed on the relevant parts of the testimony, and at that point we can call it a day.

Update on the evidence laptop: Merchan says he is informed that the laptop does NOT have wifi capability. He retires to the robing room until parties have come to an agreement regarding the requested testimony.