Judges are human, they don’t know every rule off the top of their heads, but they all know one. In an opening statement to a jury trial, the attorneys get one punch in the first sentence of an opening statement that has nothing to do with facts but accuses the other side of blatantly violating the law, and thus that side will win. After the one-sentence punch, the attorneys’ opening statements are confined to a recitation of facts that the jury is about to hear, slanted in a way that will help their case.
In the criminal trial against the Trump Organization (Not to be confused with the civil trial against Trump himself that opened today in the Bronx)), Trump’s attorneys made an “argument” in response to the prosecutor, an argument that was so egregious, the judge interrupted and sent the jury out for a 15-minute break.
According to Vice’s Greg Walters, who is live-tweeting the trial, the prosecutor made a statement in his opening, one which I find borderline improper unless it was the opening punch. The prosecutor told the 12-person jury that “benefits that covered their personal expenses ‘was a clever scheme; it just wasn’t legal,’ Fine as an opening punch, borderline improper afterward.
But things fell apart when the Trump Organization’s defense attorney, Susan Necheles, was giving her opening statement and said that this was really a personal tax fraud case. (Remember, she’s defending the Corporation and not the Trumps personally.) She had nowhere to hide. That’s a blatant legal argument.
It was at that point when Judge Juan Merchan interrupted and excused the jury, saying he understood some of the jury members wanted a break. Even if one or two wanted a break, a judge would never interrupt an opening statement, and most jurors would be furious, wanting to hear the facts uninterrupted. A judge may occasionally caution an attorney for arguing in an opening statement but not dismiss the jury.
Once the jury was out of the courtroom, Judge Merchan warned Necheles not to get into the law: “I will permit you to say that he [Trump] acted solely for his benefit, and that’s it. It’s a confusing area of the law, and for them to get confused at this point is not going to help anybody.”
“Acting for his own benefit” is an interpretation of fact.” “This is a personal tax fraud case,” is a legal argument. The Judge will explain the law in jury instructions. Totally improper.
As Walker wrote for Vice:
“Man, I have never seen a judge excuse a jury for 15 minutes in the middle of an opening argument. For those who’ve never sat through a trial before, lawyers DO NOT like to be disrupted while making these openers. It’s their chance to paint the big picture for the jury.”
Walker then said what I noted above.
: “Like, multiple sustained objections (3x so far) are one thing, but a lengthy break in the middle is just… weird. It seems a juror, or more than one, needed a break (relatable). But I think it’s fair to say this not an auspicious start for the Trump Org defense.”
Even multiple objections are weird. All judges know the rule, one punch, then facts… so do all attorneys, and they don’t like having their opening “story” interrupted.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.