And there would be clear grounds to do so, if the state courts rule that it's not necessary to clearly identify, prove, and (most importantly) allow a defense against, the alleged second crime that is an essential element of these charges (without which the charges are only misdemeanors).
That is obviously a violation of due process, punishing someone for an uncharged and unproven second crime.
But that's what was done in this case, under the DA's by all accounts "novel legal theory".
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Edit: I'm "posting too fast" so I'll respond here. You pointed out that the statute doesn't require proof of the second crime. I agree, it does not.
And that's precisely why the SC could declare it unconstitutional - it punishes an alleged second crime (by elevating the first crime to a felony with more serious penalties) without providing for due process in the prosecution of that second crime.
And I just read about a second reason the SC could overturn the case:
"The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal."
"if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case."
"and when his intent to defraud includes an intent to commit
another crime"
That doesn't really seem to require that the second crime is charged, or demand some certain level of proof (it just says "intent to commit another crime"). I guess I agree that if you wanted to make sure the felony stuck you'd charge the second crime in an attempt to establish that intent, but the statute doesn't really spell that out.
And in general, "The defendant had intent to commit another crime" is, in this context, a finding of fact that is in the jury's court.
Successful commission of the crime is not required. Nor is it required that the jury all agree on what other crime was attempted. If the prosecution makes the case that the defendant tried to commit 12 other crimes and each member of the jury thinks intent on a different crime was proven beyond a reasonable doubt, they are well within their conscience to convict.
It's strange how you're both listing the ways this statute denies the accused due process as if that made the law valid. As if merely saying that this law doesn't require due process makes it so.
To me, those are all the reasons this law is unconstitutional. New York shouldn't be able to simply write a law that ignores due process in the prosecution of some other alleged crime.
Put aside your feelings about Trump and ask yourself if that's a situation you'd like to find yourself in: accused of a laundry list of crimes and convicted even if the jury doesn't agree on which one you committed.
>To me, those are all the reasons this law is unconstitutional. New York shouldn't be able to simply write a law that ignores due process in the prosecution of some other alleged crime.
It seems that this trial is just one of many[0] (in fact, such felony cases under this law aren't uncommon at all and no one has successfully made your argument in appeals of cases where this specific law[1] was applied.
Perhaps you could get in touch with one of your former law professors to clarify your reasoning (you are actually a constitutional lawyer, or at least attended law school, right?), as it doesn't seem to comport with the jurisprudence of New York and/or Federal courts.
31 cases in 15 years is hardly proof that "such felony cases under this law aren't uncommon at all".
And that document doesn't say whether the second crime was actually charged in any of those cases. It could well be that in those other cases, due process was observed, the other crime was charged, and the objection I raised here did not apply.
That was true in the first case discussed in the link, The People of the State of New York v. Josue Aguilar Dubon, AKA Saady Dubon, AKA Alejandro Ortiz. "He and his company, Epic Auto Repair Corporation, were indicted on second-degree Tax Fraud, two counts of third-degree Tax Fraud, and two counts of fourth-degree Tax Fraud."
The jury all agree he committed a crime while attempting to commit another crime. They don't have to agree on what what crime, precisely, he was attempting to commit. Due process doesn't really enter into it because he wasn't accused of successfully accomplishing the other crime, merely of attempting one.
This is, to give an analogy, in the same space as OJ Simpson being found guilty of wrongful death and innocent of murder, for committing the same actions, and the fact that he could be tried for both not being a case of double jeopardy.
> This is, to give an analogy, in the same space as OJ Simpson being found guilty of wrongful death and innocent of murder, for committing the same actions, and the fact that he could be tried for both not being a case of double jeopardy.
OJ wasn't "found guilty of wrongful death". He was found liable, because that was a civil case, not a criminal one. That difference is also why double jeopardy didn't apply.
I can't really discuss due process with someone who doesn't know the difference between civil and criminal law.
You are correct, which highlights the way in which common sense can deviate from the actual application of law in an English-common-law-derived system.
The common sense idea would be that investigating the same fact pattern twice would be trying the same crime twice.
The actual law does not agree with that assessment for the reason you have indicated.
Due process doesn't prevent you from being found innocent of a crime and liable on a civil case on the same set of actions, and it (apparently) doesn't prevent you from being found guilty of falsifying documents to attempt a crime without requiring the jury to agree on what crime was attempted.
Trump's case, were he innocent, wouldn't have been hard to win. Even if the prosecution alleged there were 100 possible crimes Trump tried to cover up with false documentation, the defense would only need to provide one reasonable intent that wasn't a crime. That would provide reasonable doubt.
The prosecution won this case by focusing on a specific crime the false documents were meant to conceal and providing a lot of evidence as to Trump's intent. The defense didn't offer a reasonable alternative intent for the false documents. Intent is usually very hard to prove in court, so it should be reassuring that this law has such a guardrail against abuse.
They did not focus "on a specific crime the false documents were meant to conceal". They presented three possible crimes to the jury, but didn't even require them to declare that he had committed any of those crimes, let alone agree on which. If some of the jurors simply believed that "hush money" is illegal (as many people do), they could have convicted on that basis.
Each of the alleged crimes has subtle details that separate it from the perfectly legal practice of paying someone for non-disclosure. By failing to charge a specific crime, the prosecution avoided discussing those details.
Ask yourself: why didn't the prosecution charge Trump with violating 17-152, and avoid this issue? Could it be because they didn't think they would win such a charge?
> They presented three possible crimes to the jury, but didn't even require them to declare that he had committed any of those crimes
The crime he was convicted of requires proof he falsified documents to attempt to commit those other crimes, not that he succeeded. He doesn't have to be guilty of another crime to be guilty of felony record falsification in attempt to commit another crime.
And the statute doesn't require the jury to agree on what crime was attempted. That's a finding of fact left to the jury, but each juror may choose which scenario is most likely; you can't play the scenarios off each other as reasonable doubt if at least one of them is what happened in each juror's individual best judgment.
In response to your edit (learn to post...): So the jury is qualified to adjudicate the charged crime, but they aren't qualified to adjudicate intent of another crime? Or is your argument that they must additionally and explicitly declare that adjudication? Or is it that another jury has to do it ahead of time?
The jury can hardly adjudicate another crime if that crime isn't specified. And they can't do so fairly if the defendant isn't allowed to present a defense for the charges of the second crime.
And they haven't adjudicated a second crime if they don't agree unanimously about what specific crime was committed.
It's a mystery to me why the prosecution, which has mentioned a state crime they claim applies, didn't charge him with that crime. That would have provided due process and made the conviction far more convincing. Were they afraid they couldn't actually prove that crime?
That is obviously a violation of due process, punishing someone for an uncharged and unproven second crime.
But that's what was done in this case, under the DA's by all accounts "novel legal theory".
---
Edit: I'm "posting too fast" so I'll respond here. You pointed out that the statute doesn't require proof of the second crime. I agree, it does not.
And that's precisely why the SC could declare it unconstitutional - it punishes an alleged second crime (by elevating the first crime to a felony with more serious penalties) without providing for due process in the prosecution of that second crime.
And I just read about a second reason the SC could overturn the case:
"The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal."
"if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case."
https://www.vox.com/politics/2023/4/4/23648390/trump-indictm...