Turley: Not Clearly Good News for Prosecution When Jury Asks for the Instructions Again

Hannity: “Let’s get your take on the request for instructions by the jury on these four separate items. Pecker’s testimony about the phone conversation with Trump, his testimony about the decision regarding the assignment of the Karen McDougal’s life rights, his testimony about the Trump Tower meeting, and Michael Cohen’s testimony about the Trump Tower meeting. I know we should not read into these things, but I’ve read into it a thousand different ways, I did everything that I know I should not do, but I want to get your thoughts.”
TURLEY: “Well, Sean, as you’ve noted, we’re all speculating here, but heck, there’s nothing else to do. I’m surprised that some other networks have said this is really great news, that they sent this out. I have to tell you, as a criminal defense attorney, I would not view this as clearly good news for the prosecution. The only reason why a jury would send out a request to here the instructions again is if there’s a disagreement about what the instructions are. That indicates that there may be a conflict with jurors in that room about what their standard is, how they are supposed to look at the evidence. There’s various reasons why these particular parts of the testimony would be demanded by the jury. Among them is a rather intriguing one. The judge told the jury that if Cohen lied to any material fact, the jury could disregard all of his testimony. Now, he noted that that means that you have to look for corroboration of Cohen because he’s someone who obviously is not just a serial perjurer, but he’s an accomplice. So, they happen to have requested the Trump meeting, which the government cited as corroboration for Cohen, so it may have been that they started logically and say, ‘First of all, can we consider anything that Michael Cohen has said?’ And that would lead them to corroboration, which would lead them to the Trump Tower meetings. It would also lead them to the instruction. Now, is that what’s going on? Not necessarily. That is one possibility. The other possibilities include that they are looking at this evidence and they’re trying to figure out what they can establish as fact, not just to insinuate or assume the facts. So I don’t consider this such a clearly positive thing for the prosecution. As a defense attorney, I would welcome this type of request. They were only in there for a few hours and they asked to hear the instructions again and they asked to hear court testimony. The problem that Trump is having remains those instructions. They are very one-sided, and they have converted this into something of a canned hunt. What Judge Merchan has said is that you could divide 4-4-4. You could have three groups of jurors who view the facts materially differently, they could disagree as to what crime was behind this effort to falsify business records, and Merchan will still treat that as a unanimous verdict. That is pretty chilling for people that believe strongly in the criminal justice system and the very high standard of proof that is required.”
Hannity: “Well, let me ask you about that. The judge saying the underlying election charge does not have to be unanimous to me would be a reversible error. And what’s interesting, I did quote two Supreme Court cases, Andres v. The U.S., Ramos v. Louisiana, which, by the way, a fairly recent case, that was a 2020 case, and the Supreme Court held that unanimity in a jury verdict required — is required under the Sixth and Seventh Amendments, and the requirements extends to any and all issues. To find someone guilty, jurors must always agree, without dissent, on every necessary element of the purported crime. Now, that could not be any more clear. Why would he set himself up with such a reversible error?”
TURLEY: “Yeah, he’s claiming that, look, they are still unanimous that there was some crime behind all of this. I don’t think that’s adequate. We haven’t seen the jury verdict form or what they will fill out. It’s not clear. I’ve been in that court room, it’s not clear, once they vote, whether we will actually know what was the crime that they found to elevate this dead misdemeanor back into life and convert it into a felony. We haven’t seen those documents in this system. So, do I think this is potential reversible error? Sure. It’s rather a long list now of what I think are reversible errors by this judge. I expected him to do more of an effort to cure it. But the judge also has to look at this transcript when they read it tomorrow. You know, at the very end of the hearing, the judge was questioning the defense who wanted to include in the transcript something I thought was obviously material. The jury wants to here what was said about the Trump Tower meeting. One of the things that defense wants to point out is what was said that was not included in the meeting. Merchan indicated he did not think that is something they needed to here. My jaw dropped. That seams clearly material. So we’ll see if he comes to a different conclusion in the morning.”