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Commentary Archives

If Trump were not Trump he would be prosecuted for obstruction.

It is disturbing to see the excuses offered on behalf of Trump for conduct,  which if engaged in by anyone else, would be prosecuted as a clear effort to impede a federal investigation.  I am sure many of my colleagues who both defend and prosecute in federal criminal cases have often seen persons under invesigation or pending trial locked up and, thereafter, prosecuted for obstruction because of comments to potential witnesses or to investigators suggesting that they not pursue an investigative lead, or back off, or not cooperate.  Comments they made that are less clear re the intent than Trump's and made by persons with less power to reward or punish those who are sought to be influenced than the powers possessed by a president. And, contrary to what some commentators have suggested, at least in my cases - the jury has been instructed that the defendant did not need to know that an official proceeding was pending before a federal grand jury or court.   Trump may get a pass for this - but many others have not - and in the future will not - for less egregious conduct.

Conviction reversed where defendant absent during critical stage of jury deliberations and when mistrial declared

The Maryland Court of Appeals reversed a conviction where it found that the defendant was not present during critical stages of jury deliberations and when the court declared a mistrial over the objections of defense counsel.   A jury note was received by the trial court at a time when the defendant had been taken to the hospital due to a medical emergency.  The trial court subsequently determined that the jury was deadlocked on some counts and over the objections of defense counsel, and in the absence of the defendant, took a partial verdict and declared a mistrial as to the lead count of possession with intent to distribute heroin.  The trial court subsequently determined that it erred in taking the partial verdict in the absence of the defendant and granted a new trial on those counts.  With respect to count one, as to which the trial granted a mistrial, the Court of Appeals held that there was no manifest necessity to grant a mistrial at the time that it did, and in the absence of the defendant, and, therefore, principles of double jeopary barred a retrial on that count.   Read the opinon -  State v. Hart

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