Last Friday June 21 the Supreme Court of the US ruled on the Erlinger vs US case which has a huge positive implication for the 'hush money' case of Trump for which he has been convicted and awaiting sentencing. There is hardly a whimper in media which is not surprising given the leftist media has no appetite for any good news on Trump.
This ruling by SCOTUS is interesting at a few levels which I will explain in a bit. I just want to emphasise I am not a lawyer but that does not preclude one from trying to ply through legalistic mumbo jumbo with a reasonable mind.
The case of Erlinger vs US is basically about recidivism punishment, ie punishment for earlier crimes. Paul Erlinger was found guilty of burglary which carries a maximum term of 10 years in prison. Due to certain circumstances, the judge said he would have handed him a 5 year term. However, he had several cases of burglary some 26 years ago. Under the federal Armed Career Criminal Act, 3 and more episodes of the crime carry a mandatory minimum 15 years, so the judge had no choice. Erlinger appealed. on grounds his previous burglaries constituted one single violation and the judge cannot sentence him for those previous cases without his right to jury. The apellate court agreed with the lower court's opinion and the 15 year sentence stayed. However, the apellate court felt a writ of certifiori was necessary. This is a request for a higher court to perform a judicial review. It is a mechanism to allow SCOTUS to cut the queue to review important cases. SCOTUS may choose to ignore writs of certifiori. They take up only cases that are important from the point of view of settling the laws involved.
SCOTUS accepted the case, and deemed it important enough that they had an amicus, which is a 'friend of the court'. It is someone not involved in a case but engaged to present arguments of the case. Last Friday, SCOTUS ruled on the case. In a 6-3 decision the court vacated the decision of the lower court and remanded the case for further proceedings. In other words, SCOTUS asked for a retrial. For the purpose of the Armed Career Criminal Act, the lower court has to comply with the 5th and 6th Amendment to determine whether Erlinger's past offences were one single episode, or committed on different occasions.
The 5th Amendment protects against abuse of government authorities in a legal proceeding, and 6th Amendment guarantees the right to a fair and speedy trial by jury.
In the 6-3 decision, the majority view was held by 3 of the 5 conservative, and 3 of the 4 liberal, judges. It shows that for non-politically related cases, the US judiciary system functions remarkably well. The lone liberal with dissenting view was the new progressive justice Ketanji Jackson Brown, the one appointed by Biden and who cannot define what a woman is.
Essentially, what this ruling boils down to is (1) sentence enhancement cannot be arbitrarily done by judicial fiat; (2) a defendant in court is to be judged by a jury from his own community with the time-honoured requirement of a unanimous decision in the case of a felony. Point (2) has been covered many times, and as recently as in 2020 when SCOTUS, by another 6-3 decision, struck down a 1972 ruling in Louisiana that allows accused criminals to be convicted of serious crimes without a unanimous vote of the jury.
What does this SCOTUS decision have to do with the Trump 'hush money' case? There are many issues Trump's lawyers will raise in their appeal, one of which is to do with the fact there was no unanimous jury decision. In his instruction to the jury, Judge Merchan said:
"You can all disagree on if the crime was committed so long as you agree Trump committed any crime, lock him up."What does this mean? Trump faced 34 counts on 3 charges, namely:
(A) Falsifying records - by paying to his lawyer, the accountant posted the transaction to "Legal Fees Account". (If not this account, then what account? Even so if incorrect, it is just a very minor misdemeanor, not a felony).
(B) Tax violation - the wrong accounting is a violation of tax regulations (again a very minor misdemeanor, not a felony.)
(C) Federal election campaign - by causing (A) and (B) Trump's intention was to hide the payment to Stormy Daniels and this is a crime because it is trying to influence his election campaign.
Because of the intention of (C), the acts of (A) and (B) are no longer misdemeanors, but they become felonies. Thus intent is a key factor in the case.
Each of the 34 cheques Trump signed broke these 3 laws. That is the fact of the case for the prosecution.
So what Judge Merchan instructed was the jurors need not all agree on all 3 charges, so long as they all agree Trump was guilty on at least one of the charge, he will consider the decision unanimous. In other words, it will only be non-unanimous if none of the jurors found him not guilt on any one of the charges.
For example, Judge Merchan will consider the decision unanimous if the number of jurors found him guilty on each of the charges thus:
(A) x 6; (B) x 5; (C) x 1.
For a unanimous decision, the sc6re should have to be (A) x 12; (B) x 12; (C) x 12 for him to be guilty on all 3 charges. The jury did not deliver such a verdict.
In my previous blog "Democrats' gotcha moment in rigged trial of Trump in New York" I indicated there was no unanimous decision and will almost likely be vacated on appeal up to the Supreme Court. The irony is that this being a political case where liberal judges tend to be partisan, 3 of the 4 progressive judges of the Supreme Court have already ruled in the Erlinger vs US case which is in favour of Trump.
The key contention is the 'intention' of Trump in charge (C). As I mentioned in my earlier 'Rigged' blog, the prosecution never proved intent. (C) is a federal crime for which the courts of Manhattan has no jurisdiction.
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