At Just Security, Seth Barrett Tillman: The Right to a Unanimous Verdict and the Jury Instructions in People v. Trump. From the introduction:
In The People of the State of New York v. Donald J. Trump, Justice Juan Merchan issued a set of jury instructions—55 pages in length. Merchan permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. Conviction under Section 17-152 requires a predicate legal violation: a violation of some other law as part of a conspiracy to promote the election of a candidate for public office. That is, Section 17-152 is satisfied only if the defendant has violated Section 17-152 “by unlawful means.” However, according to Merchan’s instructions, the jurors did not need to reach a unanimous agreement as to what were the “unlawful means.”
Merchan’s jury instructions state:
Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.
In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.
In short, in order to convict, the jury must unanimously agree that a predicate legal violation occurred: (1) or (2) or (3), as listed above. But the jury, according to Merchan’s instructions, need not unanimously agree on any one such predicate violation. The 12-member jury could divide 4-to-4-to-4, where each juror agreed that Trump committed one of the three predicate legal violations, but there is no unanimity required in regard to any one or more of them.
There is some good reason to believe Merchan’s jury instructions are flawed, that is, the jury instructions violate Trump’s constitutional right to a unanimous verdict. . . .
A detailed analysis follows.
Recognizing that this is way outside my expertise, this sounds right. Generally I would think the prosecution does not get to argue in the alternative. The argument can't be: find the defendant guilty of robbery, because either he robbed Smith, or he robbed Jones, or he robbed Johnson (and you don't have to agree on which one he robbed). At least I assume that is the historical practice. Yet it seems like that is what the jury instructions permit.
Posted at 12:42 AM