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Judge Merchan Will Soon Be on the Spot

The prosecution in Donald Trump's criminal fraud case in New York will probably rest its case today or tomorrow. The defense is not likely to introduce many witnesses, although there are millions of New Yorkers who could truthfully testify: "I have never seen Donald Trump falsify any business records in New York State." If the defense rests, then each side will get to make concluding remarks. That won't take even a day.

Then the ball will be in Judge Juan Merchan's court, possibly as early as tomorrow and likely by Friday. It will be up to him to give the jury instructions. Those instructions could be crucial in how the jury rules, especially since there are two lawyers on the panel who will completely understand the instructions and will be able to explain them to the other 10 jurors if need be. The lawyers will also be able to explain what "beyond any reasonable doubt" means.

Each side gets to propose instructions to the judge. He can use either proposal, mix and match them, or ignore both and write his own instructions from scratch. Merchan has been on the bench for 18 years. He has done this before and is fully aware that one of the grounds for an appeal is that the judge's instructions biased the jury one way or the other. He will be super careful to make sure no bias creeps into his wording. We would not be surprised if he spent this past weekend sitting at his computer at home running Microsoft Word or Apple Pages and editing and editing and editing some more, trying to get it right. He really doesn't need any input from the litigants. He knows the law and the legal issues about falsifying business records are well established. Other than the fact that a former president is on trial, the case is very mundane and there is plenty of jurisprudence about such cases.

Could Merchan blow it at the last minute? Former federal prosecutor Renato Mariotti said that Merchan picked a jury quickly, did a solid job of issuing unremarkable rulings during the trial, and refrained from putting Trump in jail for violating his gag order. Mariotti: "He has managed to get this almost to the finish line, and that's no small accomplishment." One conceivable issue that might serve as a basis for appeal is that early on, Merchan told prosecutors to stay away from explicit details about Trump's activities in bed with Stormy Daniels. Nevertheless, they did ask questions relating to the event itself, such as whether Trump used a condom. On the other hand, the defense didn't raise any objections in real time. Merchan later said he would have sustained them if they had, but it is not his job to tell the defense when to object. If they try to use the "condom defense" in an appeal, the prosecution will (rightly) note that if they felt this was prejudicial to the case, they could have objected, but they didn't. Complaining after the trial is over is a bit late. This week is when the rubber (sorry) hits the road. (V)

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