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PaperclipPerfector  5mo ago (text post)   27978 thread views

Culture War Roundup for the week of May 27, 2024

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Thanks. I understand what you're getting at but this falls more into the category of bad defense strategy than anything that's going to get overturned on appeal. The defense argued for the inclusion of the "willfully" language in the jury instructions and the court granted their request. If they felt the need to define willfully then they could have made that argument, but they didn't. I agree that the explanation of FECA was insufficient considering how complicated the law is, but my impression is that both sides were trying to keep things as simple as possible for the jury to avoid confusion. Unless Trump plans on mounting a quixotic ineffective assistance of counsel defense, I doubt this will be an effective line of appeal. In the case you cited the problem wasn't that they didn't define a term but that they materially misstated the men's rea requirement.

Do you have a copy of the defense's proposed draft for jury instructions? Because I've not found them anywhere online, and I'm really not sure where you're so certain that they did not argue in favor it of anywhere. The defense didn't even get their request that the "willful" requirement be copied from FECA to the state election law conspiracy (from 4392, page 98 here).

See here. The highlighted sections are the defense's proposed additions to the instructions.

That looks like it's just the discussion on FECA, and it doesn't even include all of the stuff that was openly discussed during the trial transcript, where the judge quoted proposed draft from the defense with the words:

"Thus, a person acts with intent of conduct constituting a crime be performed, when the person acts willfully that a conscious objective or purpose that such conduct be performed."

And the defense highlighted :

And so, our position is that that needs to be imported up into the 17-152 mens rea. That is, the mental state required to join the conspiracy.

Our cite, this is in Footnote 25 of our request to charge, People versus Caban, C -A -B -A -N , New York Court of Appeals, 2005. This is an individual who is prosecuted for conspiracy and necessarily is an individual that must have the prescribed mens rea, the requisite intent to join others and commit a substantive crime.

The PDF I posted was only the specific section dealing with the FECA violations. There is one of these for each section of the jury instructions, and posting all of them would be a bitch on mobile.

Here's the one for Election Law 17-152, which includes the defense's request for instructions on it requiring "willful", and does not show up in the final jury instructions, so at least for the conspiracy leg it's missing completely, the objection is documented, and the error is sufficient enough that.

More broadly, while I agree that the defense should have and would have a stronger case if they'd publicly pushed harder for better instructions on FECA, and perhaps they'd have had more luck getting the EL 17-152 part if they'd only pressed to include "willful" only if the underlying predicate were the federal laws, I think you're reading preservation for appeal rules here more strictly than even the federal processes, nevermind the more permissive New York ones.

((See US v Curran for a federal example that was both considered plain error, not that much more severe in its prejudicial effect, and also where the court was "satisfied that the [oral] discussion between the trial judge and counsel following the charge was adequate to preserve the point".))

I don't think that the failure to a d the word "willful" to the jury instructions on the Election Law claim is going to be enough to get a reversal. The defense was trying to elevate the mens rea of the object to the conspiracy which isn't how things work. New York criminal law is based on the Model Penal Code, which explicitly rejects any "willful" requirement for conspiracies that the Powell doctrine may require. As for protecting the record, the tendency is that appeals courts are more willing to look beyond preservation issues when there is clear error. If, as in this case, there's merely an argument to be made, then the court is likely to claim failure to preserve to avoid wasting time with losing arguments. My guess is that any appeals here are going to be limited to issues Merchan actually ruled on and not whether the addition of another word into the jury instructions would have conceivably gotten a different result.

The defense was trying to elevate the mens rea of the object to the conspiracy which isn't how things work. New York criminal law is based on the Model Penal Code, which explicitly rejects any "willful" requirement for conspiracies that the Powell doctrine may require.

You're right to say Powell has been largely rejected, including in New York, but its doctrine is a different question: whether conspiracies to acts that are malum prohibitum need prove evil motive even if the underlying laws or regulations have no special scienter requirements. The MPC notes merely say that conspiracy does not inherently require knowledge of the law or corrupt motive; it leaves open or encourages importing elements from underlying offenses (albeit 'as a matter for courts'), pretty explicitly as part of its disavowal of Powell.

In this case, two (FECA, federal tax) of the four possible underlying laws for the conspiracy had specific "willful" requirements.

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