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May 31, 2024
Will Donald Trump make a statement on his behalf at his upcoming sentencing?
Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided not to take the stand. That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.
But with the New York criminal jury trial concluded and Trump's sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture. Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the "defendant also has the right to make a statement personally in his or her own behalf." I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination. In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.
That said, any statement by Trump at his sentencing still could be full of legal risks. In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way. And, in light of Trump's many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel's legendary book, Criminal Sentences: Law Without Order:
[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing, Judge X ... told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years' imprisonment. At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf. The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the "kangaroo court" in which he'd been tried, and the legal establishment in general. Completing the story, Judge X said, "I listened without interrupting. Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four."
I think it will be quite interesting to see if Trump decides to exercise his right under New York law "to make a statement personally" prior to his sentencing. The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right. But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.
May 31, 2024 at 08:37 AM | Permalink
Comments
He should recite all the legal errors committed by this criminal "judge", and he should call for the immediate disbarment of Steinglass who brought in "facts" at closing argument not presented during the trial.
https://redstate.com/streiff/2024/05/31/democrat-attorneys-general-demand-federal-indictment-of-daniel-perry-n2174884
James should be the first person on Trump's list to prosecute.
Posted by: federalist | May 31, 2024 9:32:01 AM
In Los Angeles, federal Judge Manny Real was notorious for being a harsh sentencer. One defendant took the route suggested by federalist and went further by insulting the judge. Real added 6 months for contempt. The defendant repeated the insult; and Real added another 6 months. And so it went about five times, adding three or so years to the sentence. On appeal the Ninth Circuit reversed! The court said Real had lost his "judicial temperament." At the time Real was the most reversed judge in the Ninth Circuit.
Posted by: anon | May 31, 2024 9:43:12 AM
If I am Trump's attorneys, I am doing all that I can to place a gag on Trump at sentencing. It's bad enough that he wants to make that type of comment to the media, but I would want to keep him from saying it directly to the judge.
Right now Donald Trump is Donald Trump's worst enemy. His attorney's will try to minimize his conduct, but, if Trump speaks (especially if he does what his supporters propose), he will show that he has no remorse and feels entitled to do what he did despite a jury concluding that what he did was illegal. That is a recipe for transforming probation into a prison sentence.
Posted by: tmm | May 31, 2024 10:17:50 AM
Trump should not dare say anything further to Judge Juan Merchan before he is sentenced for his 34 felony convictions. We all know that Trump has attacked and insulted Judge Merchan (and his adult daughter) dozens of times during the trial for being corrupt and prejudiced against him. Judge Merchan refused to take Trump's bait, even when sentencing him to nine $1,000 fines for contempt, for violating his gag order. Judge Merchan has maintained his dignity and judicial demeanor. He has acted with thoughtfulness and restraint in running Trump's trial and crafting the 52 pages of Jury Instructions. Judge Merch has focused on "getting it right", because he doesn't want to be reversed on appeal for having made any mistakes in this historic trial of a former POTUS. But if Judge Merchan wants to strike back, it will be within his power at sentencing, where he has broad discretion. IF he wants to give Trump the maximum sentence per count, 4 years, and then run them consecutively (up to the 20-year max. provided by New York law), he can do so. If he wants to have Trump taken directly into custody in the Courtroom after sentencing has been completed, and put him in a cell, he can do it. And he probably wouldn't be reversed, although the New York Court of Appeals would probably stay Trump's sentence pending appeal and promptly release him from prison. We should also keep in mind that there are unresolved motions for contempt pending against Trump for more violations of the gag order, which the Judge may address at or before sentencing. Now that the substantive trial is over and the jury has found Trump guilty, the Judge could give Trump a week in jail for each contempt violation and few would blink. And Trump has no one but himself to blame for having alienated and angered Juge Merchan except himself. I am sure his attorneys warned him that if he was convicted, this Judge would have broad discretion at sentencing. As is typical of Trump over past decades, he has ignored the good advice of expensive lawyers. Now Trump's ego and narcissism may be coming home to roost.
Posted by: Jim Gormley | May 31, 2024 10:21:28 AM
I once met an impulsive and foolish young defendant from West Virginia. At 18 years old, he had gotten caught shoplifting $182 of steaks from a grocery store, a count of misdemeanor shoplifting. This young man had no prior criminal history. He was easily lined up to get a probated sentence. All he had to do was be polite and say little if anything to the Judge. But he just couldn't resist. When the Judge asked him if he had anything he wanted to say before the Court passed sentence, he responded: "Yes, your Honor, you can just suck my dick!". Without missing a beat, the Judge replied, "Two years to serve. Next case.". So, six years later, this young moron was serving parole violation sentences and hadn't completed his two-year sentence. Some people just don't get it.
Posted by: Jim Gormley | May 31, 2024 10:30:26 AM
anon, I don't think that calling out legal errors is "insulting the judge"--
Manual Real was also boinking a litigant and screwed over another one. I get the judicial immunity, but the money it cost the other litigant should have been taken out of his hide.
Funny to watch all the libs yap about the results of a kangaroo court. I think the Supreme Court is watching this spectacle . . . .
Jim, you're a disgrace.
Posted by: federalist | May 31, 2024 10:35:33 AM
Will Trump make a statement?
I'm thinking yes. Remaining quiet would just not be like him.
Posted by: William Jockusch | May 31, 2024 1:41:14 PM
How about:
"How did a bookkeeping entry that recorded a payment to a lawyer as legal expenses impact an election if the recordation happened after the election."
And if DJT wins the election, we all know that the Dems will not vote to certify it.
Posted by: federalist | May 31, 2024 2:22:35 PM
Yes, he will make a statement. I expect the sentencing to go something like this:
Judge Merchan:
"Thank you, Mr. Trump, for your statement. I have carefully reviewed the presentence report and the memoranda of counsel.
Mr. Trump, This is not an easy task: to sentence the former President of the United States and possibly the next President of the United States. Nevertheless, it is my sworn duty to pronounce sentence upon you.
In mitigation, I consider that you are 78 years old (or soon will be) and that you have no criminal record.
In aggravation, I consider your statement to the court just now that you believe the trial was rigged, that I am corrupt, and that the case against you was masterminded by President Biden.
I also consider 1. your failure to show remorse; 2. your failure to accept responsibility; 3. your disrespecting and insulting the me and calling me "corrupt" almost on a daily basis including after the verdict and even just now; 4. your insulting my family and law clerks; 5. your insulting the jurors; 6. you disparaging the criminal justice system. 6. your having been found in contempt 10 times; 7. your trying to influence the testimony of a witness by trying to keep Michael Cohen from flipping; your having been found liable by a unanimous jury for sexually assaulting and defaming E Gene Carol to the tune of $95 million; 8. Your business having been found liable for fraud to the tune of $450 million; 9. The allegations in the federal indictment that you secreted highly classified national security documents in your home and office and refused to return them; 10. the allegation in a second federal that you participated in a conspiracy to obstruct the transfer of power after you lost the election; 11. the allegation in the Georgia indictment that you participated in a RICO conspiracy to sabotage the state election.
In sum, it is with heavy heart that I sentence you to four years in prison on each count to run concurrently with each other, to be followed by three years post-prison supervision on the usual conditions. And I order that you be taken into custody immediately. The court of appeals may release you pending appeal, but I will not. Thank you."
Posted by: anon 11 | May 31, 2024 7:43:19 PM
Anon: You have missed the 20-year cap on Trump's sentence under New York law. The Judge cannot just multiply 34 counts of conviction x 4 years = 136 years. The falsified business records statute contains a 20-year cap. I recently heard an interview with a retired Secret Service agent about how Trump could safely be incarcerated and protected by the Secret Service. The agent says that when the possibility of Trump going to jail for contempt (violating the gag order) came up, the Secret Service agents identified a VIP section at Rikers Island Jail, and a VIP section on the psych unit at Bellvue Hospital in NYC as possible places to detain Trump, with protection. Personally, I think the best place to incarcerate Trump (if it comes to that) would be on a military base, such as Ft. Dix, New Jersey. Trump's liberty would be removed, and the agents could readily protect him in on-base housing or a specially outfitted building. The most recent and close situation to incarcerating Trump in a federal prison would be what they did with former U.S. District Judge Samuel B. Kent, about 15 years ago. After initially placing Judge Kent at FMC - Devins, Massachusetts, the BOP swapped Judge Kent off to the Florida Department of Corrections, which kept him in solitary confinement for protective custody. Judge Kent was so upset by this form of incarceration that he even filed a 2255 Habeas Corpus Motion, seeking to withdraw his guilty plea (which motion was denied). Judge Kent was eventually give a furlough to his daughter's wedding in Texas and then permitted to serve the last 6 to 9 months of his sentence at his hunting cabin in West Texas, with an electronic ankle monitor.
Posted by: Jim Gormley | Jun 1, 2024 10:28:36 AM
Jim Gormley, anon12 sentenced Trump to 4 years concurrently on each count. So a total of 4 years. Not sure the 20 year max. is relevant unless I misunderstood your response.
Posted by: anon13 | Jun 1, 2024 10:54:52 AM
According to anon11 , Judge Merchan will take Trump into custody immediateley after Merchan pronounces the 4 year sentence. He leaves the question of release to the court of appeals. I ask New York practitioners how long would it take for the court of appeals to release Trump were Merchan to actually take Trump into custody?
Posted by: James the Just | Jun 1, 2024 12:24:49 PM
If Merchan orders Trump into custody, he would be sentencing Secret Service people to spend time, unarmed, in a NY jail/prison. Merchan is a truly evil person, and I wish nothing but bad on him, but I don't see him imposing a custodial sentence. The US Supreme Court may get involved. And I ultimately don't see ANY votes for kangaroo court justice.
Posted by: federalist | Jun 2, 2024 9:10:06 AM
anon11 gives a remarkably plausible transcript of the upcoming sentencing Trump, but there is an alternative script:
"Judge Merchan,
Mr. Trump, this is not the first time you have been before this court; and we must ensure it is the last. Bailiff, whack his peepee!!"
Posted by: anon | Jun 2, 2024 1:16:41 PM
In a sane world, "Judge" Merchan would serve the rest of his life in prison--in gen pop.
Posted by: federalist | Jun 2, 2024 1:55:07 PM