Manhattan Prosecutor Alvin Bragg campaigned on his explicit promise to get former President Donald Trump (R), not to uphold the law generally. His campaign was to target the man and then find a crime. He did list, though, a broad number of violent crimes that he would not prosecute at all. Now Bragg has gotten his 34 counts of guilty on a case that wouldn’t have been a felony case at all but for his claim that the 34 counts on which Trump was tried were done to cover up another crime.
Here’s what the 6th Amendment to our Constitution says on criminal trials:
In all criminal prosecutions, the accused shall enjoy the right…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor….
Here are some tidbits regarding that trial. It’s not an exhaustive list, just a few of the larger, more obvious ones.
Trump’s team was denied by the presiding judge the opportunity to call all of the witnesses they wished to call, including an expert witness who could have explained to the jury the election law that Bragg’s team made a key part of its case. The judge reserved that explanation for himself, and he testified as an expert in the guise of his jury instructions after both sides had rested their cases.
Trump’s team—and Trump himself—were never informed of the nature and cause of the accusation bringing him to trial. At no time did Bragg’s team say what the covered-up crime was, not in the indictment, not in the charge sheet initiating the trial, not at any time during the trial. Not even the jury’s sheet on which they were to mark their Guilty or Not Guilty verdict for each count indicates what that other crime was.
In the judge’s jury instruction, the judge identified three potential covered-up crimes—not the prosecutor, the judge—that the jury could find was the covered up crime that made the 34 actually charged counts crimes of which they could convict Trump. The judge’s instruction further said the jury did not have to be unanimous in its selection of that covered up crime: they could pick and choose among the list, and so long as one juror chose one (or more) from the list, that would be sufficient to convict.
As far back as 1898, the Supreme Court ruled in Thompson v Utah that
a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.”
The Court’s 1940 ruling in Andres v United States expanded on that:
Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply. In criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.
Trump was denied that unanimity.
But this wasn’t a political hit job. Not at all.
