Analysis | Why a Trump lawyer's prison reference was so 'outrageous' – The Washington Post
Not only are such arguments generally not allowed, but the judge had explicitly barred them.
For weeks, Donald Trump and his allies have taken pains to undermine the proceedings in his Manhattan criminal trial by hook or by crook.
And in that way, his lawyer’s closing argument ended on an appropriate — if apparently underhanded — note Tuesday. Near the end of his remarks, Todd Blanche included a conspicuous reference to the jury about sending Trump to prison.
It’s common knowledge in legal circles that such things are not allowed, which the judge soon noted in rebuking Blanche. He called Blanche’s inclusion of it “outrageous” and noted that a lawyer of his experience must have known better — the apparent suggestion being that Blanche deliberately sought to inappropriately influence the jury.
Making Blanche’s apparent gambit even more suspect: the fact that he had been explicitly instructed by the judge not to do such a thing.
To recap, Blanche, in the final minutes of his closing argument, painted former Trump lawyer Michael Cohen as an inveterate liar and told the jury, “You cannot send somebody to prison, you cannot convict somebody-”
Before he could finish his thought, prosecutors objected, and New York Supreme Court Justice Juan Merchan sustained the objection.
After the jury exited came the rebuke.
“I think that saying that was outrageous, Mr. Blanche — please have a seat,” Merchan said. “For someone who has been a prosecutor as long as you have, and a defense attorney as long as you have, you know that making a comment like that is highly inappropriate. It’s simply not allowed. Period. It’s hard for me to imagine how that was accidental in any way.”
When the jury returned, Merchan instructed it to completely disregard Blanche’s “improper” comment and to not consider potential sentences in any way. He noted that a prison sentence wasn’t a given if Trump were convicted.
But it wasn’t just Blanche’s experience that should have counseled him against such a statement — it was also Merchan’s own instructions. In fact, Merchan explicitly forbade such arguments in an order two months ago.
Prosecutors in a February motion had sought a number of limitations.
Merchan granted some of the motions March 18. He wrote that the “Defendant is precluded from,” among other things, “making arguments and introducing evidence regarding any potential punishment or other consequences to the Defendant as a result of these proceedings.”
Jurors in the vast majority of legal proceedings in the United States are barred from considering potential punishments, with notable exceptions in state courts in Louisiana and North Carolina.
“Any criminal attorney knows that you are not supposed to bring up the sentence,” said Jeffrey Bellin, a professor at the William & Mary Law School who has studied the subject. He noted that it’s common knowledge in part because there are strong disagreements about it.
Wayne State University Law School professor William Ortman added that “the prohibition on talking about potential punishment isn’t some esoteric bit of specialized knowledge.”
The reason lawyers are generally not allowed to cite potential prison time is that it’s irrelevant to their task. In most cases, judges get to decide sentences, not juries. One fear is that a jury might decline to convict someone if they worry that the punishment will be too severe. Another is that jurors might fear for their well-being if a criminal gets insufficient prison time.
The U.S. Supreme Court has affirmed that potential punishments should not be considered by juries. In 1994’s Shannon v. United States, a criminal defendant sought to have the jury instructed that finding him not guilty only by reason of insanity would result in his involuntary commitment to a mental institution.
“The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury,” Justice Clarence Thomas wrote in the 7-2 decision.
“Information regarding the consequences of a verdict is therefore irrelevant to the jury’s task,” Thomas added in the decision. “Moreover, providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their fact-finding responsibilities, and creates a strong possibility of confusion.”
In the case of Trump, it would seem logical that jurors might fear a punishment that is too severe, given the unprecedented stature of the defendant. It’s one thing to convict Trump of the mundane-sounding charge of falsifying business records; it would be another to pave the way for a former president of the United States to spend months or years in prison.
“I think the only possible defense for counsel in this case would be that the reference to prison was meant colloquially — as a stand-in for the seriousness of a criminal conviction — not to foreshadow the sentence Trump would receive,” Bellin said. “But judges typically won’t buy that since there is a clear tactical advantage to raising the prospect of a harsh sentence to make the jury hesitate before convicting.”
Ortman said that it was particularly “misleading” for Blanche to broach prison time without noting that such a sentence isn’t required.
Trump has been unsubtle about his efforts to make life hell for anyone who would hold him accountable in a court of law. He’s been sanctioned for gesturing at the idea that the jury is biased against him, in violation of his gag order. (The jurors are anonymous, but we’ve already seen how keeping them anonymous has proved difficult.) Merchan has even suggested that Trump’s conduct might intimidate the jury.
In that way, you could understand how Blanche’s brief allusion to prison could land with some force — and how Merchan might understand it as an intentional act meant to undermine his court.
Donald Trump is the first former president convicted of a crime. Follow live updates.
Can Trump still run for president? Yes. He is eligible to campaign and serve as president if elected. Here’s everything to know about next steps, what this means for his candidacy and the other outstanding trials he faces.
What happens next? Trump’s sentencing is scheduled for July 11. He faces up to four years in prison, but legal experts say incarceration appears unlikely. Trump has 30 days to file notice of an appeal of the verdict and six months to file the full appeal.
Reaction to the verdict: Trump continued to maintain his innocence, railing against what he called a “rigged, disgraceful trial” and emphasizing voters would deliver the real verdict on Election Day.
The charges: Trump was found guilty on 34 felony counts of falsifying business records. Falsifying business records is a felony in New York when there is an “intent to defraud” that includes an intent to “commit another crime or to aid or conceal” another crime.