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naraburns  nihil supernum  1yr ago (text post)   37958 thread views

Culture War Roundup for the week of March 27, 2023

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Trump Indicted: https://www.cnbc.com/2023/03/30/donald-trump-indicted-in-hush-money-payment-case.html

This is a major enough story that I think it goes beyond needing more than just a link.

Elie Mystal over at The Nation has a pretty skeptical take. Noting that the statute of limitations has passed for both crimes and the theory for why it should be tolled is not great.

The first issue that Bragg has is time. Trump committed the underlying campaign finance offense in 2016, and the statute of limitations on bookkeeping fraud and campaign finance violations is five years. That brings you to 2021. The statute of limitations for tax evasion is three years. Even if you don’t start the clock on that until the story breaks in the news in 2018, that brings you, once again, to 2021. To get to 2023, Bragg appears to be arguing that the statute of limitations paused while Trump was president and living out of state. That’s… a theory, but not necessarily a good one, and certainly not one that has been tested enough to know how it’s going to hold up in the courts. Remember, the alleged immunity Trump had from prosecutions applied only at the federal level. Local prosecutors, like Bragg’s predecessor Cyrus Vance, who was the Manhattan DA during Trump’s presidency, could have charged him with this crime at any time.

ETA:

My understanding is the case is a claim that Trump falsified business records with his payments to Cohen that were ultimately intended for Daniels. Normally this is a misdemeanor:

A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:

1. Makes or causes a false entry in the business records of an enterprise

However, it upgrades to a felony if:

his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

So the question is does "another crime" include federal crimes or only state crimes? He's not being prosecuted for violating any particular federal law, his violation of federal law is merely the predicate for finding he committed a more serious violation of New York State law.

Bragg appears to be arguing that the statute of limitations paused while Trump was president and living out of state. That’s… a theory, but not necessarily a good one, and certainly not one that has been tested enough to know how it’s going to hold up in the courts. Remember, the alleged immunity Trump had from prosecutions applied only at the federal level. Local prosecutors, like Bragg’s predecessor Cyrus Vance, who was the Manhattan DA during Trump’s presidency, could have charged him with this crime at any time.

This is what happens when "journalists" don't do even mimimal homework. The reference to Trump being out of state is almost certainly not a reference to him being immune while in office, but rather a reference to Article 30.10(4) of the NY criminal procedure code, which says:

In calculating the time limitation applicable to commencement of criminal action, the following periods shall not be included: (a) Any period following the commission of the offense during which (i) the defendant was continuously outside this state

Moreover:

Of course, an individual can be absent from the state for weeks or months; return to New York for a time; and then leave for additional weeks or months. And such absences and returns may occur repeatedly over a period of years. The issue that naturally arises in limitations cases concerns which among intermittent periods of absence are those in which a defendant is considered to have been "continuously" outside the state.

The Court of Appeals addressed that issue in People v Knobel (94 NY2d 226 [1999]). The Court agreed with the People that "all periods of a day or more that a nonresident defendant is out-of-State should be totaled and toll the Statute of Limitations." (People v Knobel, 94 NY2d at 230; see also People v Chase, 299 AD2d 597, 598-599 [3d Dept 2002]; People v Ferrari, 155 Misc 2d 749, 754 [Ulster County Ct 1992].) That is true for every day that the defendant is absent for the "full" day. Thus, if defendant in this case was a nonresident and was absent from New York for more than 93 complete days between November 13, 2012, and February 14, 2018, the two challenged counts survive defendant's attack—even if at various other times in that period defendant was in New York.

People v. Cruciani, 63 Misc. 3d 226, 228 (2019).

Can we talk about how dumb that rule is? The whole point of a SOL is that certain things when passed need not be litigated years later on the idea that evidence may be stale / people deserve certainty.

There isn’t really a credible reason to tie the SOL to the location of the individual.

Not saying that makes the law invalid. Just dumb.

It is limited to five years, and it is a very common rule. Most states have it. And while that might be the purpose of a SOL, it is not the only policy consideration. Another policy consideration is that criminals should not be encouraged to attempt to avoid justice by fleeing the jurisdiction. Hence, it is not dumb. It is a compromise between competing principles.

That would be true IF the person leaving the jurisdiction somehow prevented the government from prosecuting the case or gathering facts. Maybe that was true once upon time but no longer in today’s world. At minimum there should be a rebuttal presumption.

That would not address the problem of criminals avoiding justice entirely by fleeing and waiting out the SOL. Which is the problem that the tolling statute is meant to address. There are many legitimate, yet mutually inconsistent, ways of compromising among the competing principles. The fact that the one chosen by the NY legislature is not the one you would have chosen does not render their choice stupid.

That is what a WARRANT is for!

You issue the warrant, and then if the person in question is out of state the charge has been filed.

There is nothing about being out of state that prevents the filing of charges, the prosecution of charges sure you need the person to be present for trial... but countless people have fled the country and warrants were procured in their absense.

The SOL applies to before the charges are filed. There is no reason the presense or absense of a person would limit the filing of charges unless you need them to be present to even get the evidence, for which you'd accuse them of a crime... which you can get warrants to procure evidence...

So the only reason absense would play on the statute of limitations is there is not even enough evidence to procure a warrant to procure evidence... in which case its litterally just hearsay and speculation, and there's no goddamn reason the statute of limitations shouldn't be running.

Of course, one could toll SOL after an indictment which solves your problem. It is dumb because it defeats the purposes behind the SOL in todays world.

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