"I’m an Appellate Lawyer in Manhattan. If Trump Appeals His Conviction, He Faces
Long Odds."

By Roger L. Stavis

Mr. Stavis is a defense and appellate lawyer and a former prosecutor in New York
City.

June 10, 2024, 5:04 a.m. ET

Donald Trump has vowed to appeal his conviction on 34 counts of falsifying
business records. Some on the right have argued that the trial was a
“target-rich environment” for an appeal. Others have said that the U.S. Supreme
Court should “step in” and provide relief to Mr. Trump.

Nevertheless, the process will begin in New York, where state law gives Mr.
Trump — and any other individual with a criminal conviction — an absolute right
to an appeal before an intermediate appellate court known as the Supreme Court,
Appellate Division, First Department.

As a prosecutor and a defense attorney for decades, I have argued hundreds of
cases at this court. I’ve looked closely at the Trump case. The burning question
now is, could his conviction be reversed on appeal? My answer is, the chances of
that are not good.

Mr. Trump’s legal team can approach his appeal on several fronts, but only one,
concerning the legal theory behind the falsifying business records charge, is
likely to hold out anything more than the slimmest of hopes for the former
president.

In recent years, the Appellate Division, First Department, has reversed appeals
from criminal convictions in only about 4 to 6 percent of cases. These long odds
should come as no surprise. While the Constitution guarantees criminal
defendants a fair trial, it does not guarantee them a perfect one.

To warrant reversal of a jury’s verdict on account of an error, the appellate
court must find that an error of some kind led directly to the conviction. A
technical error that does not rise to that level is called a “harmless error”
and will not cause a reversal of a conviction.

In Mr. Trump’s trial, perhaps the best example of harmless error occurred during
the prosecutor’s direct examination of Stormy Daniels. The prosecutor elicited
intimate details of the sexual encounter Ms. Daniels alleges she had with Mr.
Trump and also her testimony that she felt physically threatened by the
circumstances of their encounter. Mr. Trump’s defense counsel argued that by
discussing the sexual details, which made Mr. Trump appear pathetic, and the
statement that she felt intimidated, which made it appear as though the sex was
not consensual, the prosecutor had greatly prejudiced Mr. Trump in the eyes of
the jury. This was the subject of a mistrial motion, which Justice Juan Merchan
denied.

If this supposedly prejudicial testimony is put to the judges on the appellate
court, they would ask if the lurid portions of Ms. Daniels’s testimony caused
the jury to convict Mr. Trump. The answer here is a clear no.

The defense counsel has cited other issues as grounds for reversal. Take, for
example, Justice Merchan’s denial of a change of venue. This is more a political
argument that assumes, incorrectly, that because a certain percentage of
Manhattan voters did not vote for Mr. Trump, they could not possibly be fair to
him. The voir dire process, in which Mr. Trump’s attorneys were fully engaged
and ultimately agreed to the jury selected, undermined any claim that a
Manhattan jury was incapable of being fair and impartial.

Critics of the case have also suggested that the defense was not made
sufficiently aware of the theory behind the charges despite the Sixth Amendment
right to notice of the “nature and cause of the accusation.” This is also most
likely to fail, because on Feb. 15, Justice Merchan explained in a 30-page
decision the precise nature of the charges to be faced at trial.

If the Appellate Division has some concerns with the verdict, it will probably
focus on the legal theory that provided the framework for the trial. This will
offer the strongest chance for a successful appeal.

That theory was novel and unprecedented. Falsifying business records in the
first degree is one of the most common business crimes prosecuted by the
Manhattan district attorney’s office. The basic crime is a misdemeanor, but it
is elevated to a felony when the false entry in a company’s business records
includes “an intent to commit another crime or to aid or conceal the commission
thereof.”

When the district attorney brings a case like this, the falsifying business
records charge is often charged as a felony, with various underlying common
crimes, like state tax fraud, elevating it from a misdemeanor.

Alvin Bragg, the Manhattan district attorney, pursued a theory, and the crime
was the violation of New York Election Law 17-152 (conspiracy to promote or
prevent election), which makes it a crime to promote someone’s election to
public office by “unlawful means.”

In defining “unlawful means” for the jury, Justice Merchan made reference to the
tax violations, but also to the Federal Election Campaign Act, which precludes
corporate campaign contributions and limits personal ones. The violation of the
New York Election Law transformed this rather mundane business crime into an
election interference case.

When the appellate court digs into the complicated nature of these charges after
Mr. Trump inevitably appeals, it must decide if the charges were unduly vague
and thus may have violated constitutional due process.

Since the false filing statute has been broadly construed by the courts, the
mere reference to a federal crime would not appear to jeopardize the charges.
This will be an uphill climb for Mr. Trump’s lawyers.

https://www.nytimes.com/2024/06/10/opinion/donald-trump-appeal-conviction.html

Trump is well and truly fucked, and deservedly so. He's a career criminal who
finally got caught.