If you were following my reports during the Trump hush-money trial, you already know I believe that the judge made several crucial errors, including his directions to the jury.

A recent case before the Supreme Court has more or less guaranteed that Trump's verdict will be overturned, if not by the appellate or state supreme court, the Supreme Court of the United States.

Talking Points…
- Trump jury instructions
- Erlinger v. United States
- Analysis

Judge Merchan Jury Instructions

There was a lot of misreporting of the jury instructions given by Merchan to the jury, but I don't believe that was done on purpose. I don't think some of the people reporting on the trial understood the legalese that Merchan was speaking. Having said that, some of these instructions still leave open the door for an appeal for Trump.

At the heart of the issue is how Merchan explained to the jury they could come about finding Trump guilty in every count of the indictment. Merchan told the jury that there were three different ways the law could have been broken to result in a guilty verdict and that the jury did not have to be unanimous in finding any one way that he broke the law.

This did not mean that a unanimous verdict was not required; it was just that the jurors could interpret the law as having been broken in any one of the three ways that would result in a guilty verdict. So, even if four jurors thought he law was broken one way, four another, and four the final way, they would all vote to convict, therefore, it would be considered a guilty verdict in terms of that specific charge because all 12 jurors were in agreement that a crime had been committed.

Erlinger v. United States

That specific instruction has come under scrutiny by legal experts, including Jonathan Turley, who is a constitutional expert (if you recall, he was used during the Trump impeachment hearings). In the Erlinger case before the Supreme Court, the court addressed the issue of a unanimous verdict and how it is applied to a case and a jury verdict. On that specific instruction, Turley had stated:

"My greatest objection was the [jury] instruction allowing for a nonunanimous decision on the secondary crime that was critical in reviving the dead misdemeanor office on the falsification of business records."

The fact that the jurors could, in essence, find Trump guilty three different ways for any one indictment did not sit well with Turley, and he pointed to the Erlinger verdict as to why he believes this case will be overturned. In the Erlinger decision, the court stated:

"The Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant's past offenses were committed on separate occasions."

Turley then explained his objections to Merchan's jury instructions, stating:

"The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This contrasts how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant…

"They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved."

Analysis

Now, I have read several legal opinions on this, including that of Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, who went out of her way to justify the jury instructions given by Merchan. So, this all comes down to the interpretation of the Constitution and how Merchan's direct instructions are being interpreted. Like Turley, I don't think conservative judges and/or justices will interpret his instructions as being in the spirit of the 5^th and 6^th Amendments, so I am leaning heavily toward the verdict ultimately being overturned at some point during the appeals process.