Several days ago, I heard a loud, raucous cacophony (a 50-dollar word only lawyers use, meaning chaotic, empty noise) coming from my chickens. I feared that rocky raccoon was doing another drive-thru (he recently used his opposable thumbs to peel back my chicken wire defense system, leaving me with two fewer hens). When I got to the coop, “Eddie,” my red rooster was trying to calm down the ladies with soothing words. It wasn’t working, so I made the dumb mistake of asking the warring factions to explain the issues.
“Trump needs to go to jail. Just look at all the evil he has done-stolen classified documents, revealed secrets to the Russians, ate dinner at McDonald’s.”
Several others exclaimed, “He is our only hope. He is being persecuted for no reason. They hate his hair. They hate his politics. They even hate his wife. He needs to win, or the world we know will cease.”
I wondered, “How did these chickens come up with all this stuff? They clearly cannot read. They don’t have t.v. They clearly don’t know how to access social media?” Then I realized that I may have made a critical error: to ward off Rocky Racoon, my son had installed a radio, thinking that playing a human voice would scare Rocky off.
He tried music, but John Denver did not work.
He turned on a talk radio station, and that worked great. Rocky could not tolerate the doom and gloom being broadcasted and stayed away. But the chickens had no choice. And, of course, with Trump being indicted, the Trump topic flooded the airwaves. I changed the station to a Spanish-language talk radio. But in the meantime, I had to calm them down.
” Ladies!” I exclaimed. “Ladies, please calm down. You have not given me any eggs in a week. It’s because you are too anxious. Let’s focus on your prime directive…”
“NO, “they all exclaimed (even the roosters joined in. Normally, they would say zero, but they walk in fear of the ladies, so they joined in). “This Trump issue is too important. Turn the radio back to the talk radio, or we are all on strike.”
“No can do,” I responded. “This is a chicken coop. And you are not bit players in the movie “IDIOCRACY. Let me give you a few tips on how to read this indictment. It’s first-year law school. “
“Ok, “Rooster Eddie said with some trepidation. “But hurry up as I got better things to do. “(like what, I wondered?)
First, and you can take this to the bank (if yours is still open), the “facts” alluded to in the indictment are zero. ZERO. NOTHING. NADA.
You are all getting excited about mindless drivel that will never ever be relied upon by anyone for anything.
ASK ANY FIRST-YEAR LAW STUDENT: What is an indictment? ANSWER: it’s a charge. It’s an allegation. It’s an assertion -essentially an unproven opinion- opinion of the prosecution of what he/she thinks he/she can prove.
Or worse: it is a trumped-up (I hope that is not confusing) set of maybe true, possibly false, or overstated assertions that are designed to intimidate the defendant into pleading guilty lest he or she faces 400 years in jail. I can tell you without hesitation that in setting forth what he/she feels they can prove, prosecutors allege things all the time that they cannot prove.
Think about that: and prove it to yourself. If every indictment consisted of true, provable, unexaggerated facts, then every defendant would be found guilty at trial because everything the prosecutors alleged would always be true. Or provable.
It ain’t. A large number of indictments fail. Because the prosecutors simply cannot prove what they alleged.
I made a living proving the falsity of allegations found in indictments. And I had a thriving practice because I won nearly all my cases. How: by proving that what the Prosecutor alleged in the indictment was false or by filing motions to the court to exclude the evidence being offered, or the allegations being made, as inadmissible under the rules of evidence that the Federal and State courts follow and have followed for over 250 years.
More often than not, I found that Prosecutors, in my opinion, overstated their claims in the indictments, threw in all kinds of things they can never prove, added charges that they knew wouldn’t stick, and ran up the possible years in prison that they knew would never happen–all to intimidate the defendant into a guilty plea on “lesser” charges. It’s just a way to get a guilty plea. And it works for a whole bunch. It’s wrong, but it happens so often that no one in the profession seems to even care anymore about what’s in an indictment-except the scared, ignorant defendant. And well-meaning but ignorant members of the public that don’t know how the system works.
Let me give you some references to the allegations being made-the alleged evidence asserted in the indictment- and assess what is likely to happen with it.
First, is the indictment itself admissible evidence? Will the allegations made by the prosecutor ever be made known to the jury as admissible evidence?
Nope!
The jury never reads or is allowed to read the indictment. Unless they read it in the press, they will never know what’s in it. And if they read it in the press, more than likely, they will be found to be prejudicial, and they will be excluded from serving. Essentially, the indictment never sees the light of day. Its not evidence.
(That raises a simple question: why get excited over this document? That a former sitting president is being sued by his political rival is certainly noteworthy. But the contents of this document make its value similar to twice-used toilet paper).
Secondly, the indictment alleges some 30-plus charges of crime related to some 30-plus contraband documents. It charges a separate violation of law re each document.
Consider the following: you rob a bank of 10,000 dollars. The prosecutors file an indictment against you, alleging that each dollar you stole is a separate count of bank robbery. Thus, if the penalty for bank robbery is ten years in jail, they charge you 10,000 times ten years. I don’t know any judge that would allow this. My expectation is that the charge will be reduced to one bank robbery, not 10,000.
However, despite this likely outcome, it has long been the practice of certain prosecutors to pursue this strategy of turning one crime into multiple by parsing out the charges based upon some ill-conceived notion that each item stolen is a separate crime. In my experience (including candid conversations with many prosecutors regarding this strategy), this strategy of multiplying the crime by separately charging each document is violative of federal law. If so, why do it? Maybe to scare Trump into pleading for a single crime? Maybe to present a sensationalized indictment aimed at public opinion. In my practice, this “strategy” is always wrong. Always dishonest. And always violative of what I believe is the prosecutor’s sacred duty to be fair and operate within the law.
Third, the indictment makes a big deal about BOXES. It alleges that during his term as President, Trump loaded up boxes with personal materials and comingled classified documents in those same boxes. They then offer pictures of boxes at the White House and at Mara Lago and infer this is evidence that Trump moved massive amounts of illegally possessed classified documents via these boxes.
Let’s now imagine we are in trial.
Imagine the prosecution wants to tell the jury all about these boxes. Prior to trial, there is a pre-trial conference wherein the court and the parties discuss the details of the trial, exchange evidence and witness lists, and argue motions outside of the hearing of the jury. One of the principal events in this pretrial conference is what is called MOTIONS IN LIMINE: MOTIONS TO EXCLUDE EVIDENCE DEEMED INAPPROPRIATE UNDER THE RULES OF EVIDENCE.
In my trial days, I responded to and made thousands upon thousands of such motions. It’s just standard practice. The whole point is that proposed evidence that one side wants to offer can be excluded from the jury by an evidentiary motion asserting that the subject evidence is inadmissible. It’s done outside the presence of the jury because if the Court excludes it, then the jury should never hear it. If you do the motion in front of the jury, they obviously hear the “proposed” but inadmissible evidence (which, of course, circumvents the Courts ruling excluding it.) Let’s listen now to what I think will transpire in such motion that I expect Trump’s lawyers to make:
Prosecutor: Your honor, we now offer into evidence pictures we have of Boxes.”
Trump lawyer: ” Objection: relevancy. Speculation. No foundation. The prosecution offers no evidence of what is in the Boxes. We have no evidence, your honor, of what is in the boxes. Unless they have evidence that these boxes contain the contraband material, they are just boxes and, as such, have no bearing on any issue in the case.
Boxes are common in America. Having boxes while moving is normal. Unless there is evidence that there is some contraband in every one of these boxes, it is inadmissible to show a jury a picture of 50,60 or 100 boxes and infer that contraband documents are contained therein. Having a box by itself without any additional evidence is simply speculation and highly prejudicial to the defendant, as the number of boxes shown is just to smear Trump and make the jury believe that he was somehow wrongfully moving 10’s of thousands of documents. Proving that Trump had boxes is irrelevant and proves nothing.
Let me give an example, your honor: The prosecution shows us a picture of boxes in the driveway of the White House while Trump was moving. They show us more photographs of boxes at Mara Lago. Are they the same boxes? They just want us to infer that the boxes at the White House are the same as the ones shown at Mara Logo. But speculation and guessing are a very inadmissible way to prove the viability of their assertion. Each picture shows numerous boxes-50,60,70. There is no way to verify if the Boxes shown at the White House are the same as the ones shown at Mara Lago. Maybe the boxes shown at the White House went to a different location. Maybe the boxes at Mara Lago have been there for years. We just don’t have any evidence showing a chain of custody. Surely the prosecution is aware of the need to show that chain- yet they have not. As such, what is the admissibility of pictures of boxes?
The prosecution just took pictures of boxes and failed to show us where they came from, that the boxes shown in the photos are the same as boxes in other photos. Moreover, they offer no evidence that any of these boxes contain any contraband they allege exists. We don’t know what is in the boxes. Could be underwear. Could be artwork. The prosecution has the burden of proof to demonstrate what is actually in the boxes before pictures of boxes are admissible as evidence.
Now, of interest- and to me, this shows the weakness of their offer of proof-the prosecution has alleged in the indictment that they have a photo of one box that spilled its content and that a photo exists that a document in that one box had some “classification” marking on it. Your honor, at best, that does not show what is in any of the other boxes, and as such, this one box is woefully inadequate to make any other box admissible. Moreover, as to that one box, where is it? What evidence does the prosecution offer that the one document itself is relevant to this case? The prosecution lists some 37 documents that Trump had that form the basis for his crime. This one document shown in the photos from the one box is not one of the 37 they say Trump held illegally. As such, it is irrelevant. As such, by their own conduct, they admit that this one document is not in his possession illegally. The only other possible conclusion is that the prosecution feels that Trump has this one document legally. How can a document that is in Trump’s possession legally form a basis for admitting hundreds of boxes, contents unknown?
The objection is that the photos of “Boxes” is irrelevant, and no foundation for their admissibility has been shown (foundation means that the contents of the boxes have been authenticated to be filled with the 37 documents that the prosecution alleges were held by Trump illegally) and is only offered, not to prove a fact but to smear by speculation and innuendo, the defendants.”
On its face, then, the indictment’s reference to BOXES is simply a reference to inadmissible evidence. I personally expect it will either be withdrawn as stupid or denied as inadmissible by the Court.
Take another piece of evidence: transcripts of discussions Trump had about top-secret documents with those who did not hold clearance. Some of which are conversations with his lawyers.
Are these tapes admissible? Are the transcripts?
How did the FBI get such transcripts? Did they wiretap the former President? Did they acquire the statements of the lawyers without violating Trump’s attorney-client privilege? (In this regard, a critical piece of law is vital. The attorney-client privilege belongs to Trump-not his lawyer. His lawyers have no authority to talk to the FBI. They cannot waive his rights. If they do, the material is inadmissible, and the State/Federal Bar will likely ask the lawyers to justify what appears to be unethical conduct).
The indictment alleges that the FBI had proof that certain phone calls were made between either Trump and Nauta or Trump and others. They infer these calls were made to further a conspiracy. They cite the date of the call. The involved parties. And the amount of time spent. Did the FBI wiretap the former president? If so, was it done legally?
It may be that everything the FBI did in gathering info was legitimate and legal. However, as a trial attorney, I would spend considerable effort finding out the who, what, when, why, and how the FBI obtained access to these calls. How the hell did the FBI listen in on Trump? On his conversations with his lawyers? His conversations with Nauta? If obtained in violation of Trump’s constitutional right to privacy, or in violation of law, or in violation of his attorney-client privilege, some or all of it will be inadmissible. Its only value then would be to smear Trump to the public who reads it.
SPEAKING TO MY CHICKENS: “To summarize and conclude: only a moron would rely on the facts alleged in the Trump indictment to determine innocence or guilt. Any first-year law student will tell you that. As such, what is the value of listening to the political commentators? And what is the quality of their analysis? They exist at the Bozo level of analysis.
Henrietta(Eddies number 1 hen and leader of the” I hate Trump” contingent of the coop) replied: “But he is charged with very serious crimes. Even you said that the indictment’s value is in telling Trump what he is charged with. Those charges alone tell me that he is a very bad man. There are over 30 separate charges that can result in him going to jail for over 400 years.”
Master feeder:” Really? Well, Henrietta, some of the coop thinks you are a lazy, evil, vile hen. They point out that you secretly eat other hen’s eggs. Should we simply believe these allegations, or should we seek the evidence before we evaluate you?”
Sylvia (another prominent hen) “Wut? you mean it’s not ok to eat other chicken’s eggs? Yikes!!”
Master feeder: ” LOOK-the whole point of my talk is to tell you to stop being morons by believing the wild ass allegations made by the Government. When did the Government ever tell you the truth?
Just realize that the jury will decide the case on the evidence, and so far, nothing in the indictment seems remotely likely to ever make it to a jury. Sleep on it. Tomorrow, we talk about the law Trump is charged under. It’s fascinating. Oh, by the way, I better see some eggs-uneaten- or no dinner.”
:
but nothing in the indictment is in fact admissible evidence at triel. the jury willnever ead the indictment. they willnever hear its words. other than telling Trump and his assitant, nauta that you are being sued by me becasue i hagte you, the indctment has no value, use or purpose. noone–noone has ever been convicted by a jury based upon the allegations in an indcitment.
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The post Woke in the Third Degree: My Chickens Woke up to the Trump Indictment and Feared the Advent of the Idiocracy appeared first on Granite Grok.