I’m quoted in USA Today on the chances for Former President Trump on appeal of his 34 felony convictions in New York.
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Merchan's pre-trial rulings on what evidence was allowed to be presented could be grounds for appeal, especially given a New York appellate decision during the trial overturned the 2020 rape conviction of former Hollywood Oscar-winning producer Harvey Weinstein, according to Mitchell Epner, a former prosecutor and long-time New York litigator.
"It overturned what was one of the biggest criminal convictions against one of the richest and most powerful people in New York this century," Epner told USA TODAY.
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In Trump's case, Merchan likewise made rulings that allowed testimony or evidence stretching beyond the charged crimes, such as the transcript of the infamous "Access Hollywood" tape in which Trump described kissing women without waiting for consent and grabbing their genitals. Merchan said the prosecution could bring in the transcript to make the case that Trump wanted to pay Stormy Daniels to prevent her from publicly discussing their alleged affair after fallout from the tape's release endangered his standing with women voters. But Merchan ruled that playing the tape itself would go too far.
Merchan ruled during the trial that Trump could be cross-examined about court determinations in civil cases that Trump defamed New York writer E. Jean Carroll and fraudulently inflated his assets to get loan and insurance breaks, but not that Trump sexually abused Carroll. (Trump publicly pledged to testify in his defense in the criminal case before the trial, but he backed out.)
Epner said the Weinstein decision could mean Trump has a shot, because it "demonstrated that there are a core group of people on the Court of Appeals who think that this issue is so important that even in the most high-profile case, they will overturn it if they think the trial court has done it wrong."
But, he added, Merchan's rulings could very well be upheld. "If I had to bet on one side versus the other on that, I think that they would be affirmed," Epner said. "But I don't think it's a slam dunk."
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Shane Stansbury, a Duke Law School lecturer and former New York federal prosecutor, told the BBC ahead of the trial that it was "unclear if a state prosecutor can invoke a federal election crime, as it appears Mr Bragg intends to do."
However, Epner didn't expect Trump to win on this argument given that New York law doesn't place any restriction on the crime prosecutors can point to.
"It doesn't say 'state law.' It doesn't say 'federal law.' It doesn't say 'U.S. law,'" Epner said.
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