Former federal prosecutor Doug Burns and Trump attorney Jesse Binnall told Newsmax on Tuesday that it's "highly unusual" for judges to "hide" jury instructions from the public, as Judge Juan Merchan has in the New York paperwork trial against former President Donald Trump.
"We refer to it in the trenches of the conference rooms as charging somebody out of a case," Burns said during an appearance on Newsmax's "American Agenda." "You heard me say weeks ago, and you know it is what it is – I knew the instructions were going to be critical in this case – but if he's going to say something like, 'If you should find that there was a double or dual purpose, the election as well as protecting his wife, you can nevertheless find that that selection related …' that's charging the defendant right out of the case."
"It will be very interesting to see whether we get our eyeballs on this set of written jury instructions. I'm hearing different reports about that because any trial lawyer — Jesse is gonna tell you — we look at those instructions," he continued. "They're everything because, first of all, you craft your summation based on what's in there all the time, and you say things like, 'Ladies and gentlemen, as the judge will tell you, A, B, C.' They're going to be absolutely critical."
Closing arguments in Trump's New York paperwork trial began on Tuesday, with the former president's lawyers delivering their summation before the prosecution's afternoon appeal to the jury.
Neither Manhattan District Attorney Alvin Bragg's office nor Trump's defense team has reportedly received the jury instructions, which are typically used by attorneys when crafting their summations at the end of a case. When asked how atypical it is for a judge to withhold jury instructions from lawyers prior to closing arguments, Binnall said, "It's very atypical, what we're seeing from him."
"I will say, Doug is exactly right, jury instructions are key," Binnall said. "Juries place a lot of emphasis on those instructions. That's what they go back into their conference room with and that's the rubric that they see everything through. So, for a judge to kind of hide from the public the way that he's going to instruct the jury [is] extremely unusual."
"They're alleging some form of Federal Election Campaign Act violation here, and the intent requirement for a Federal Election Campaign Act is you have to willfully violate the law," he continued. "You have to know what the law requires and then willfully violate it. And the judge has signaled that he's not going to include a jury instruction showing that. Highly, highly unusual, but that's par for the course in this case, where this judge has gone out of his way to go against the grain, against the normal due process protections of a defendant, in order to try to do everything he can from the bench to ensure a conviction."
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