Did The Supreme Court Just Shift the Ground Under The Feet of New York and The Sham Trial of President Trump?

by Shipwreckedcrew

“[a] fact that increases” a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sentence, must “be submitted to a jury” and found unanimously and beyond a reasonable doubt.

This passage is found in the decision today by the Supreme Court in Erlingher v. United States, but this is merely the most recent pronouncement of a watershed ruling on the constitutional rights of defendants in criminal cases first announced in the Court’s 2000 decision in Apprendi v. New Jersey.

Since Apprendi the Court has invalidated a variety of sentencing procedures under state and federal law used to increase the sentences in criminal cases through minimizing or eliminating the role of the jury in rendering a unanimous verdict on facts necessary to impose longer sentences.

In Erlinger the defendant was convicted of being a felon-in-possession of a firearm, a rather “garden-variety” federal felony not dissimilar from the crime Hunter Biden was just convicted of.

But Erlingher had a lengthy criminal history — dating back 26 years — and as a result he was also charged under the “Armed Career Criminal Act.” That statute carries a mandatory minimum sentence of 15 years for recidivists convicted of illegally possessing a firearm when they have three prior state or federal convictions for violent felonies or serious drug offenses.

In Erlinger, the defendant was convicted of a common gun-crime for which the maximum sentence was 10 years. But the ACCA allegation, if proven true, would increase his sentence to a mandatory minimum of 15 years — a minimum that was 5 years longer than the maximum without the ACCA finding.

The application of the ACCA has undergone significant litigation over the past 20 years on the question of what crimes — particularly what state crimes in the 50 different states with all kinds of different state laws — fall within the federal statute’s reference to “crimes of violence” and to a lesser degree “serious drug offenses.” The definitions turn out to be much more difficult to apply in practice than might seem to be the case just looking at the phrases.

But the issue in Erlinger was who decides if there are three prior convictions that qualify under the ACCA? Historically, it has been an issue resolved by the trial judges after a jury returns a verdict of guilty on the gun charge. But following a long series of cases on this general topic going back to Apprendi, the Court concluded in Erlinger that the issue of how many prior “occasions” of criminal activity can only be determined from several factual questions bound up in the events and circumstances of each of those prior “occasions”. As such, whether or not ACCA is proven requires façtual findings, and such facts must be resolved unanimously by a jury beyond a reasonable doubt, and not by a judge as part of the sentencing process.

 
This is a “not all that controversial outcome” on this ACCA question given the path that the Court has followed on similar issues since Apprendi that involved decision-making by judges at sentencing that influence the sentence imposed. In fact, Erlingher has the unusual circumstance of both the Government and the Defendant agreeing that the sentencing court and appeals court were wrong, and the Supreme Court appointed “Amicus counsel” to take on the role typically performed by the Government in defending the outcome in the the Appeals Court. The DOJ and the defendant both believed this would be the correct outcome.

So, how does this impact the decision in Alvin Bragg’s NY state court prosecution of trump just finished up last month? Because it drives home in yet another context the need for a unanimous verdict from a jury on any fact that increases the potential maximum sentence that a defendant might face as a result of his conviction.

In the NY case, Trump was charged with “false business records” crime that is ordinarily a misdemeanor, punishable by less than 1 year. But that statute increases the potential maximum sentence to 4 years — a felony — if another fact is found to be true, i.e., the misdemeanor was committed with the “intent” to conceal another crime. The other crime as alleged by the Bragg was a violation of Sec. 17-152, conspiring to promote or prevent the election of any person by “unlawful means.” Bragg’s theory was that the false business records were intended to cover up this “conspiracy”.

In Erlinger the Court repeated what it first said in Apprendi — any fact that increases the potential maximum sentence for a defendant must be decided unanimously by a jury on a “beyond a reasonable doubt” standard — the language I put at the very top here.

In the NY case, the existence of a second crime being concealed increased the maximum sentence from 1 year to 4 years. It is exactly the kind of “fact” that Apprendi was concerned with — a fact that increased Trump’s exposure from a misdemeanor to a felony.

Where the problems arose was from the decision by the trial judge to instruct the jury that they did not need to be unanimous as to the “unlawful means.” He gave them three options, told them that all they had to agree that one of the three options was proven, but they did not need to agree unanimously as to any one of the three — it was a “buffet” where they could all chose differently.

As a general proposition, I would say that a red flag should be flown high any time a judge in a criminal trial tells a jury that they need not be unanimous on any particular part of their verdict.

Without doing too much of a deep dive on the jury instructions in the NY case, those arguing that the Judge’s instructions were sufficient even without requiring unanimity on the “unlawful means” will argue the only requirement needed was that Trump “intended” to conceal the second crime — the conspiring to promote Trump by “unlawful means. Since it was the presence or absence of this “intent” that created the felony, that was all the jury needed to be unanimous on. They did not need to be unanimous on the “unlawul means” he “intended” to employ because he wasn’t charged with a crime for engaging in those those “unlawful means.” That’s as much as I’m going to attempt here.

Those who have challenged this instruction to the jury — including myself — have argued that the jury needed to decide more that simply that Trump “intended” to conspire because “conspiring” alone is not a crime.

“Conspiring to commit a crime” … is a crime.

So unless you have unanimity on the “crime” being conspired about, you don’t have a “criminal conspiracy” that makes the misdemeanor a felony. This confusion stems from a poorly drafted statute referring to “unlawful means” where what is actually being referenced is the “unlawful objective.”

Objective = murder.

Means = via gun, knife, hammer, suffocation, etc.

A jury can find a defendant guilty of murder without having to agree on what “means” was used to kill the victim.

The phrase “unlawful means” in the statute — based on the way the jury was instructed — is not a “means” as typically understood, but the criminal objective of the conspiracy — without which you don’t have a criminal conspiracy. The jury given 3 options and told they did not need to agree.

The decision in Erlinger — requiring that a unanimous jury decide the specifics of the prior crimes that might trigger the longer sentence under the ACCA statute — supports the view of the manner in which the misdemeanor becomes a felony under the NY statute as has been advanced in Trump’s favor.

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