Welcome to Politically Speaking.

I'm Elizabeth Bennion chancellor's professor of political science and director of community engagement and the American Democracy Project at Indiana University, South Bend.

Former President Donald Trump was convicted of 34 counts of falsification of business records in a state court in New York.

This makes Donald Trump the first former American president to be convicted of a felony.

Sentencing for this case has been set for July 11th.

Joining us today to talk about the legal proceedings of this case is Michael Dvorak, former Saint Joseph County prosecutor.

Thanks so much for being here.

Thank you.

Now I want to start by just asking you to tell me what exactly was the charge in this case, or were the charges and what was it that the prosecutor had to prove, and what was their burden of proof in this case?

I'm not intimately familiar with the charges.

All I know is there was a 34 count indictment.

That means 34 different and separate charges.

I did not read the entire department.

So I can't really comment on that.

but I can explain to you the process of an indictment and how it goes forward.

in a criminal prosecution under indictment, that means it went through a grand jury.

Different states have different reasons for taking cases.

The grand jury in some states, a particular charge needs to go through the grand jury.

Ohio, I believe every felony of a certain level has to go through a grand jury.

So a grand jury is a, group of citizens that are called to serve.

And it is, a mini trial of sorts.

the jurors are there.

There's no defense attorney.

The prosecutor and the judge are there.

They're the officials in the proceeding.

And the prosecutor has to show enough evidence that the grand jury will find a true bill on one or every whatever number of counts that they find, or they, don't find an indictment.

They don't find a true bill, and they deny it.

one might say it's pretty easy to get that kind of an indictment by a grand jury.

And frankly, it can be.

But it it's a filtering system.

just stop.

prosecutors from being overaggressive in filing charges that have no merit.

Bringing in a jury, meaning a regular jury to hear the case with a defense attorney on their side.

And, place that individual defendant in jeopardy when in fact, they had no case at all.

the fact that, a case goes to a grand jury is not something that's usually brought to the attention of the jurors.

it's not fair or appropriate to tell the jurors that another group of citizens saw this and thought that there was enough probable cause to, have, an indictment issued.

so generally, the trial jury doesn't know that, and nor should they.

but at least it it's a filtering system before any individual you or I are put on trial for a cause.

by having someone review those facts and the court determine whether or not this is an evidence that they would admit, and anticipating what would be legitimate defenses on the other side.

again, it's not it's not that difficult.

If the prosecutor is, not overreaching.

But it does kind of prevent an overreaching prosecutor from going forward.

So once the grand jury decides to indict and we move on to the actual trial that everybody paid attention to with those convictions, then the burden is on the prosecution, correct, that they have to prove all charges beyond a reasonable doubt for the jurors to find on each individual count.

Yes.

there's a presentation of evidence.

defense attorneys there to challenge any evidence that's coming in.

the defense attorney and the prosecutor generally know what the evidence is going to be from both sides.

Why?

They may not be well aware of the details.

there's witness list that are provided, to the other side.

The defense in most jurisdictions has an opportunity to review all the police reports, all the sworn statements that the prosecution's going to use.

All that's made available to the defense in advance of trial.

And sometimes when trials are delayed, new evidence is coming in and the prosecutor shares it.

The defense attorney said, I need more time.

They get more time to do it.

And so, there's generally not a surprise in terms of the evidence that's heard.

there may be decisions that are made even in advance, between the prosecutor and the defense attorney, with the judge present out of the hearing of the jury, even before trailer, in the midst of a trial about, whether or not a certain fact can be admitted and presented to the jury.

The the interesting role that a judge plays in a trial is neither helping the prosecution nor the defense, but what he or she is, the judge is doing is looking at if the jury comes back with a guilty finding.

Have I let in too much evidence that's going to be overturning that conviction?

I don't want that to happen.

Or did I not allow enough evidence to give the fairness to the state to be able to prove their cause?

And so they're the referee calling the balls and strikes.

And, the standard they're looking at isn't just their own personal bias.

It's their, their knowledge of the history of this particular issue being argued before in appellate courts in that same jurisdiction.

it seems like that also opens up a lot of challenges to the fairness of the judge, which is something we, of course, see in this case, which is arguing that the judge may have allowed certain evidence in or kept other evidence out that affected the results.

And that very well, then, could be the grounds for the appeal by Trump's legal team.

Is that correct?

That's exactly right.

And again, I don't know, all the instances and what evidence was presented.

I've caught snippets of news about it and was interested in that, to find out how the judge ruled on some of those items of evidence.

What what actually happens in the way the system set up is it's more beneficial to the defense generally than the prosecution.

once again, the court does not want to most judges do not want to allow in evidence that they know is on that line, that kind of in a baseball game, whether the ball is fair or foul, when it goes outside, the judge doesn't get an instant replay or a camera.

That judge has to make that decision, but he or she is going to know some evidence law about how similar cases have been ruled upon before.

the judge may even tell both sides, you know, before I make this decision, I'll give you, you know, two days a week or whatever.

Generally, it's done ahead of trial.

They don't wait that long during a trial, but the judge will ask each side to brief it.

Meaning, give me some law supporting your position.

That'll be thrown out, Mr. Defense Attorney.

Mr.

Prosecutor, you come up with evidence that says, a case law that says that evidence is admissible.

And so that that's something that when people listen to it who aren't trained in the law, they're going to say, well, I don't understand that.

Well, you don't, because you're not trained in law.

But, all the parties in that courtroom are trained in the law and the judges the judges bias ought to be.

I don't want to be overturned.

I want to do it right, so I. I don't get overturned.

whether that's for or against the defense or for or against the prosecution.

How about the public attention on a case like that?

Is that also in your mind, a check on the judge's behavior, wanting to be fair, as fair as possible, given all the eyes on a high profile case like this?

It should be.

And, I'm not commenting on whether the judge was there or not.

I once again, I you they they gave you a news clips on it and I don't know what the rulings were, and I wasn't really deep in the weeds in any of it.

but, it should make a difference.

There's historical situations in the past where some judges have been affected, by the attention and, made decisions that were overturned one way or the other.

And whether that could happen in this case.

It's entirely possible, I don't know.

I don't know what arguments, about.

I have not heard any arguments on the news from either the prosecution side or the defense side about particular pieces of evidence that should have been, let in or not let in.

that, gave an opportunity for error.

I do know there were a couple of parts that I thought concerned me a little bit when they talked about there were two different women that were involved, and when they talked about the first woman, sometimes you need to bring in certain evidence to meet an element of the crime.

And I think that first female that testified about her relationship with the defendant.

but my first thought was it doesn't pertain to the the case of the second female.

Why they let it in and the talking heads that we're talking about it on the various channels said that was that testimony was necessary to, proven element to the case and that allowed them to do it.

Generally speaking, if a person is a bank robber and they were arrested for bank robbery before, you can't bring out the fact they did a bank robbery before.

And if there's three bank robberies that occurred in the same time as this one, and you're proving this this, bank robbery that happened yesterday, you can't be talking about the four bank robberies that happened in our community within the last two weeks, as evidence to suggests.

This guy did.

Obviously, this one, even unless you're charging all those bank robberies together.

I, I don't want to go too, too far down a rabbit hole, but the trial court judge wants relevance, doesn't want people being, hearing evidence that makes you suspicious.

They want you to hear evidence that, if believed, should make you believe they did or did not do that crime.

Now, as they think about evidence, I want to think about, how the type of evidence presented in a case like this case against Donald Trump works and how important it is weighing it against something like the importance of witness testimony.

So in this case, we have, you know, falsified ledger entries, falsified checks, and falsified invoices, each serving as a separate count.

here, a falsification of business records to change the results or affect the results, to promote one candidate in an election.

And so in this case, you have actual documents, but you also have a lot of witnesses testifying, which is more important, or are they all equally important as you're trying to make your case as a prosecutor, how much are you relying on paper, documents that kind of evidence versus eyewitness testimony or witness testimony more generally?

There's a lot of questions in your question, but I'll, I'll try to answer it.

neither is more important than the other.

At the end of the day, the jurors get instructions, and the instructions are quite detailed, and they're based upon previous instructions in similar cases that that court has given.

the attorneys are offered the opportunity to present instructions from both sides of the case.

And in criminal cases, the prosecutor and defense attorney and the judge is going to have their own set of instructions as well.

And they literally have a discussion about the instructions.

And of course, the judge is the arbiter and decides which ones get her.

I've never heard an instruction that says one piece of evidence is more important than another.

There's never going to be an instruction, says this person's testimony live.

Stating before you is any more important than another person's testimony from a deposition that was given.

And they're unavailable because they were killed in a car accident last night.

And now you can you can.

They're not told which one is more important.

That's up for the jury to decide what they want to believe and what they want to give to it.

I will say that in, having been both a prosecutor and a criminal defense attorney in my career, I wasn't really involved in paper crimes as much.

we had people in our offices who did some of those, my colleagues that I've worked with, friends of mine who were assistant U.S. attorneys presenting paper documents, have always said that if the cases relied primarily upon paper documents, that they're easier to prove the testimony because unless you can unless there's evidence that counterbalances said that was a forged document, paper pretty much speaks for itself, is even in some cases more persuasive, persuasive than than video, evidence.

Because, sometimes people are suspicious of video.

but paper crimes and it were all you need is paper to prove a crime or the slam dunk for prosecutors.

And it's very seldom go to trial because defense attorneys know how difficult in this case.

I understand that paper was important as well as testimony, but but, they're never told one is more important or more valuable to the jury.

And some of these particular checks were signed by Donald Trump himself, but only a small subset.

How important would that be in convicting Trump himself over the sort of argument that, well, people were doing this without my knowledge in cases like that, is it critical to have his signature on some of these documents, if that's such, such an important part of the evidence?

The little bit I understand about this trial was that, former President Trump denied knowledge of it.

If they have checks that were signed by somebody else, an employee of his or a person in his direction, a person who generally did this and the in a state, this was state brought cases under a federal government case, and the state proved that this was a check.

They would then have the burden of proving that he had some knowledge about that check being done, and that could have been done by people testifying that it was typical that he did that.

That could be done by somebody saying, I was there when he told somebody to do it, but there has to be some kind of nexus between the check that's not signed by him, which he's attributed to authorizing the fact that's not signed by him.

wouldn't, wouldn't mean, wouldn't mean that it it couldn't have been at his direction.

Likewise of the if somebody signed a check and I'm not talking about the Trump case, but any case, here's your signature on a check and it's there.

And you said, yes, that's my signature.

And the prosecutor one start you will.

Then you committed the crime.

And and you through your defense attorney or through another witness said, yeah, but there was somebody standing there holding a gun to her head, and she either signed their name or she got shot.

I mean, that's a gross example of duress, but so the fact that it's signed, the person could say, I didn't direct that to be done.

or they had witnesses who said I did not direct that to be done.

Then that's counterbalanced against witnesses that might have said yes, they did direct it to be done so that that there probably wouldn't be a whole lot of debate over Mr. Smith signing that check if I directed him to do it.

And if that was a crime, nobody's waste time on proving whether or not Mr. Smith did it.

Maybe Mr. Smith came in and said, I did it, and they asked if it was directed, maybe, didn't I?

I'm running too far down the rabbit hole, but the piece of paper being signed by you as a defendant, or not by you, his value in that it was signed and it was.

And it was a check and it went out.

And the state proves that's a crime.

They've got to make a connection to your authorization of that.

Okay, now, you mentioned mention the fact that sometimes people distrust, videos.

They might also distrust certain witnesses in this case, They might also distrust certain witnesses in this case, one of the prosecution's witnesses, Michael Cohen, who made the payments?

there's sort of hush money payments to Stormy Daniels was somebody who had admitted or pled guilty to lying to both the House and the Senate.

security councils in the past.

And so he was a known her juror.

To what extent does that play into, how a jury is instructed to treat that testimony, by a judge and how the prosecution and defense will handle those kinds of witnesses?

that kind of a witness for a prosecutor is always difficult in most cases.

charging criminal intent.

the person that is assisting the defendant in doing their crimes is often guilty of crimes themselves.

And so a prosecutor knows going into it in the beginning, it's going to be difficult to do that, to prove it, because over there, in terms of how much is that, way that person's testimony talking about Cohen, who was prosecuted essentially for the same act by the federal government, previously and in prison for it, made lies initially about having done anything wrong.

And then at the time that afterwards convicted, then admitted he did things.

So he comes in to court and he's testifying because he's got, a dislike for the former president.

And he and and they argue that that's his motivation.

That motivation is a decision by the jury to make based upon everything you learn about him, not from what you see saw on television or what you read in the newspaper.

saw on television or what you read in the newspaper.

There, confined to what's going on in that trial.

And there are things that I'm sure with all the reporting that was done on both the people who wanted to see him convicted and the people that didn't, I'm sure there's stuff that they missed, but the people that didn't miss anything were the jurors.

The evidence was provided.

The evidence that was included or excluded, and that's how that process works.

But again, you keep going to the question of how much evidence, how much value you put on it.

The 12 people that make the decision sitting in the jury box are the ones that decide how much they put on it.

There's 12 people.

You may have put a lot of evidence on the fact that he was convicted and wouldn't support him.

I may have, or the other guy may have said, I think that was that made the case for me.

They then have to negotiate what they think is right.

what happened?

What what I read from the verdict after seeing, 12 people is that and and the I don't know how many hours they they deliberated.

It was over a couple period of days.

it's they pretty unanimously agreed on everything.

a lot of times, prosecutors put multiple counts in.

Sometimes even the way the statute runs.

That doesn't mean if if each charge has a two year sentence, you multiply 34 times two.

Some charges are inherently part of another crime.

And they and when you get convicted of them, there's certain rules that apply as to whether or not those run concurrently meaning together or consecutive.

So some of those may have been concurrent with each other.

So 34 is cut down in half or whatever.

Then some may have been of necessity consecutive.

So it goes longer.

I have not read the statute, so I can't tell you how that works, but that's typically the case in some of the things that prosecutors are doing in a, in a large case with that with number of charges is they may think, well, I can maybe get this count.

I'd like to see get the top count and maybe they'll come back with the middle one, because jurors sometimes compromise.

They'll compromise the guilt.

Somebody will say, well, I believe that defendant's guilty, but I, I don't want this most serious crime.

I'm going to do the least serious or one in the middle.

And people might say, well, is that fair?

That's our system.

They do that.

one of the things that I, I wondered to comment, not saying anything about the verdict other than the fact that, as, an individual doing criminal defense and criminal prosecution, I've got a lot of respect for the jury system.

Even in cases that I've lost, I've lost cases.

As a prosecutor, I thought I should have won.

I have lost cases as a defense attorney that I thought I should have won, and I've won cases.

I was surprised they won and lost cases, I surprised, I lost.

I mean, everything happens, but at the end of the day, it's it's it's a system that you as an individual sitting in that jury box as a citizen, you become more involved in your government than you do.

Even when you vote.

And by the way, they used to restrict, juries to people who voted, for several years.

Now, I think almost all jurisdictions have gone away from just getting voters from, jurors from voting rolls.

They take them from other areas.

I think Michigan, you're if you're breathing, you're going to be on a jury unless you're a certain age or have a disability doesn't allow you to be on it.

Most people don't want to be on juries.

most people are people shy away from, that responsibility, for talking about a criminal case or a civil case or somebody who's asking for damages.

some people are afraid to be on cases that are going to have be very gory with some violent crimes.

the majority of people that I've talked to, friends, relatives and even jurors that have approached me after cases that I've been on either side of a winning side or losing side, prosecution defense.

They have said to me, you know, I really didn't want to serve on a jury, but I think that's been an amazing experience.

I would strangers I never met or knew before, and we all had we all had different walks of life, different economic situations.

But we really we decided what the law was right there.

There's a there's a general instruction that comes out that basically says you're to follow the law unless you find some good reason not to.

And that's a that's an instruction that a lot of prosecutors don't like.

And that means that if you think that after all the evidence you heard this, this person may or may not, may or may not have done this act, but you don't think they should be convicted, then basically you could do that.

You can't say that, but you could do that and you could do that by all coming together and returning a not guilty.

Or you can say, I'm I'm not going to I'm not going to convict this guy.

Why?

Because he's too young and I he made a mistake and I don't want him to go to prison.

Now, you never know what the what the end result is going to be.

And they.

Yeah.

And it's improper for either side to argue.

Don't convict my guy because he's going to go to prison because not all people go to prison.

Convicted of crimes.

So in this case, we did have 12 jurors all decided guilty.

And the 34 counts for each of these individual invoices, checks, etc., falsifying business records, 30 days, as I understand it after the sentencing, to say that you'll appeal six months to appeal.

So this could be years could before it's finally resolved.

I it could be I don't know that years plural, but at least a year or two in most state court cases, I remember one time I did a criminal trial and it was a sentencing, and the judge stacked the sentences random consecutively, one after the other.

And I basically argued to the judge that that's not fair, because you could have charged him with 20 more of these crimes, and there was evidence there for it.

And they you charged, they charge for and they it was all in one short period of time.

And they should be treated the same, which is a good point in this case, because I know some people are saying it could be 136 years with four years per count, but the max in New York is 20, anywhere from zero days to 20, years.

That's pretty a lot of discussion for the judge.

I'm sure we'll all be watching, as that sentencing hearing takes place.

Yes.

Thank you so much for being here.

Unfortunately, that's all the time we have for this week's Politically Speaking.

So I want to thank our guests, Michael Dvorak, former Saint Joseph County prosecutor.

I'm Elizabeth Bennion reminding you that it takes all of us to make democracy work.

We'll see you next time.

This WNIT Local production has been made possible in part by viewers like you.

Thank you.