If you were to give jury instructions that said, you can take his race into account or his sexuality can be a determining factor would that be lawful? It seems logical to me to assume that the jury instructions should be in accordance with the law. I’m just trying to understand the thinking here. I don’t think anything will happen to benefit Trump from a legal perspective so long as he’s not President.
The short answer is no.
Generally speaking, selective prosecution is unconstitutional under the 14th amendment's "equal protection" clause. To prove selective prosecution, a defendant must demonstrate that they have been singled out for prosecution via "impermissible factors" while others in similar cases have not been prosecuted.
These "impermissible factors" are the usual things we find in HR:
To give a jury instruction that says you can consider that the defendant is black (or gay) when white (or straight) people in similar situations would not be prosecuted would be illegal.
It seems logical to me to assume that the jury instructions should be in accordance with the law. I’m just trying to understand the thinking here. I don’t think anything will happen to benefit Trump from a legal perspective so long as he’s not President.
This suggests a different question altogether.
I (and Craig) were addressing the false statement that the jury instructions included the "4-4-4" example, which it did not; that came from the media as a glib way of explaining the instructions.
That said, the jury instructions told the members of the jury that they had to be unanimous on each count (which is correct), but this was a "novel" charge that's never in history been made before.
The charge of "fraudulent documentation in furtherance of another crime" is usually meant to cover things like money laundering or structuring (sequencing a large payment into a series of smaller payments to bypass banking regulations) where some other crime occurred (like illegal drug sales or insider trading) and the records were altered or faked to cover up the underlying crime. In these cases, the underlying crime is also prosecuted and both the major crime and the records crimes are bundled together.
This is not what happened in President Trump's case. In Bragg's prosecution, he never specified what the underlying crime was; he was vague and evasive about it all throughout the prosecution and defense, and only suggested three possible underlying crimes during the closing arguments well after the defense would have a chance to put up a rebuttal or defense of the charges.
Where the jury instructions run afoul of the law is when Merchan told the jury that they didn't have to agree on the underlying crime but they had to agree that the records were falsified to cover up "some" crime. This is where the "4-4-4" came from, the media suggestion that 1/3rd of the jury could think it was Bragg's first suggestion, 1/3rd believed the second, and the last third believed the third, but they were all unanimous that the records were falsified. This is obviously absurd. Merchan compounded the instruction by saying that the jury didn't even have to prove the underlying crime or decide if Trump even carried out the crime or intended to commit the crime!
Where the headline of this article may be misleading is that Merchan can say that he DID instruct the jury that they had to be unanimous on EACH charge, but the indictments only specified the specific banking transactions that the city alleged were fraudulent. The indictments did not mention anything about an underlying crime; that language came from the state law that Bragg used to revive the fraudulent records misdemeanor that had passed its statute of limitations several years ago (that "novel" part).
So, Bragg used a state law that required an underlying crime as the reason for falsifying business records, but only indicted Trump for falsifying business records. Without an underlying crime, charging those business records are illegal because the transactions occurred too long ago. Bragg created a circular argument that the records were falsified to cover up another crime, and that because there was another crime the records must have been falsified. But he never stated nor charged Trump with the other crime.
So I don't think this ruling does what the author of the article thinks it does.
-PJ