New York County Courthouse.
(New York Public Library Digital Collection)
The People of the State of New York, Decision and Order on Defendant’s Motion to Dismiss the Indictment and Vacate the Jury’s Verdict, Pursuant to NY Statutes.
Judges and lawyers are human beings. When they make rulings or rules, they make them as human beings. With all that means.
It is not really true that some people are good and some people are bad. We often like to think so. I often like to simplify the people in my life that way, but I will readily admit that it’s not really an accurate way to describe people. We all do good things and we all are sinners doing bad things.
That’s what it means to be a human being. It means that sometimes we do good things and other times we do things that are not so good. Some people, God knows, do things that are downright evil but in the long run I have learned that it’s probably best left to God to decide who they are, I think. Here on earth, at least in the United States, we have the justice system.
At any rate, that was going to be my starting point for some articles that I would publish here in the near future at least: Judges and lawyers are human beings when they make rulings and when they make rules; in short, when judges and lawyers do everything they do.
I have been a lawyer for the much greater part of Half a Century. During that time I have known many judges and many lawyers. I have seen them and worked with them and obeyed them including in courtrooms, in offices, in litigation, in mediation, and in negotiations. All of those judges and lawyers have been human beings, by the way.
That is what I wanted to start out writing about in 2025. The topic seems important. The defense of cases will be a concern to many if not most of us given the coming behavior of suing people but more often threatening to sue you for real or imagined slights. And for your actual behavior or an informant’s story of your deviation from the prevailing order of things, God forbid.
Either way, whether because of the fear of lawsuits coming against you, or because of the fear of threats of the government and its minions suing you, with the fear a result of the fact that most people do not know what it means to be involved in litigation or to share the company of judges and lawyers, I wanted to write about the defense of cases. I can share with you what I have seen and heard and felt in litigation, from lawyers and judges, in courtrooms and in hallways of power.
However, Judge Juan Merchan cut that short. You may recall Judge Merchan as the judge presiding over the criminal trial in New York State Supreme Court which resulted in a jury verdict of 34 felony convictions. Judge Merchan cut short my writing plans by writing his Decision and Order of Friday, January 3, 2025.
By way of background, the Order was entered on Defendant’s Motion to Dismiss the Indictment and Vacate the Jury’s Verdict. The Defendant’s Motion specifically invoked certain NY statutes which are identified in the Defendant’s Motion and addressed in the Court’s Decision and Order.
Three things stand out to me about this Order and I would like to share them with you here.
- Under the New York statutes that the Defendant invoked, the Court was required to consider the character of the Defendant.
In other words, the Defendant and his lawyers gave Judge Merchan the opportunity to write about the Defendant’s character. They, not Judge Merchan, made the Defendant’s character an issue.
The New York Statutes are the law. They are not recommendations. Trial judges like Judge Merchan are required to follow them because the statutes are the law. The New York Statutes on which the Defendant based his Motion to Dismiss and to Vacate required the trial judge to consider the Defendant’s character. It was not an option.
Think with me for a moment about what you or I would say about the Defendant’s character. Instead of seizing this opportunity to deliver a sermon or write a speech, Judge Merchan’s response was not personal but instead described the Defendant’s character in terms of the system of justice.
Judge Merchan’s response is in two paragraphs out of 18 pages in his Decision and Order.
Here is what Judge Merchan wrote:
Despite Defendant's unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, individual prosecutors, witnesses and the Rule of Law, this Court has refrained from commenting thereon unless required to do so as when ruling on motions for contempt of court. However, Defendant, by virtue of the instant motion, directly asks this Court to consider his character as a basis to vacate the jury verdict, and this Court must do so in accordance with the requirements of CPL section 210.40(1)(d).
Defendant's disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole. Sec People's Response at Section IV. C. In the case at bar, despite repeated admonitions, this Court was left with no choice but to find the Defendant guilty of 10 counts of Contempt for his repeated violations of this Court's Order Restricting Extrajudicial Statements ("Statements Order"), findings which by definition mean that Defendant willingly ignored the lawful mandates of this Court. An Order which Defendant continues to attack as "unlawful" and "unconstitutional," despite the fact that it has been challenged and upheld by the Appellate Division First Department and the New York Court of Appeals, no less than eight times. Indeed, as Defendant must surely know, the same Order was left undisturbed by the United States Supreme Court on December 9, 2024. Good Lawgic, LLC, et al,, v. Merchan, 604 US 24A328 [2024]. Yet Defendant continues to undermine its legitimacy, in posts to his millions of followers. Indeed, this is not the only instance in which Defendant has been held in contempt or sanctioned by a Court. Defendant's character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed under this factor in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.
(Decision and Order on Defendant’s Motion to Dismiss and Vacate, January 3, 2025, at pages 11-12.)
This part of the Order ends with the observation that considering the Defendant’s character in his sentencing “does not weigh in his favor.” Notice that the language is restrained. Very tightly restrained. Judge Merchan could have written many things, but he said this in the way that a judge should say them, in the way that is expected from a judge.
A real judge that is.
The best way to put these words in perspective, is to once again consider what you or I would have said in the same position.
I do not know Judge Merchan. I haven’t always agreed with all his rulings. There were times when I thought he might have handled things differently during the trial, and there were have been such times after the jury came back with its verdict. This is not one of those times.
My conclusion from just the first thing that struck me about the Order: This was written by a Judge, a Judge with a capital “J,” a real Judge, someone who does more than put on a robe and sit in judgment above the courtroom. That is an important thing to know.
- The Defendant and his lawyers made a “president-elect immunity” argument. That is, that since the Defendant is now the president-elect, he should have absolute immunity and the indictment and the jury’s verdict should be dismissed completely.
The second thing that struck me about this Order was that Judge Merchan could have written simply that this argument was rejected and the motion was denied. That he did not tells us something.
Whether he intended to send us a message or not, he wrote instead a couple of times that he does not have the “power” to make a “president-elect immunity” defense exist where it never existed before, where no judge in any court ever made one in the past.
To me this is a message, intended or not, to higher courts, especially to the current majority on the Roberts Court: 'The ball is in your court, U.S. Supreme Court, to fashion an immunity defense for presidents-elect or at least for this one.
But I won’t do it because I can’t.'
It is hard if not impossible for a lawyer or another judge to disagree with the proposition that it is not the place of a trial judge in the New York State Courts to invent a national immunity that never previously existed.
- Sentencing is scheduled for January 10, 2025.
Just a day or so before the Order was released, the Defendant said that he would attend funeral services for President Jimmy Carter on January 9th in Washington, D.C.
Obviously this Order puts sentencing a day after that.
It will be hard for the Defendant to complain about the scheduling although it seems reasonably certain, based on past performance inside and outside of courtrooms, that the Defendant and his lawyers will complain about the scheduling. However, in this case Judge Marchan gave the Defendant the option of appearing virtually so he would not have to make the trip in person. The virtual option takes the sting out of any real possibility for a complaint about scheduling. Under the circumstances.
These are the three things that stand out to me about this 18-page Decision and Order of January 3, 2025. Commentators have discussed and will continue to discuss many other aspects of this Order. Other commentators have so far made the observation, for example, as Judge Merchan did in the Order itself, that the Defendant himself invited sentencing after the election which he asserted continuously he was certainly going to win. The commentary points out that as a result, the Court – and I would add, the public – could reasonably believe that the Defendant not only did not object to sentencing while he is the president-elect but that the Defendant actually invited sentencing after he became the president-elect.
But for the present, I have shared the three things that stand out to me from this Order. I will continue to try to share my own experience when I think that it may shed some light on future legal goings-on. It is my hope that you will find whatever light I can shed to be useful in both of us living with our heads up in the days ahead of us.
Please read the disclaimer. ©2025 Dennis J. Wall. All rights reserved. Interested in many things in addition to Claims and Bad Faith Law? Sign up for a free subscription to my Substack newsletter.