Presumptive GOP candidate Donald Trump is planning to appeal his New York state conviction on 34 counts of falsifying business records.
And while many people believe he has a good shot of winning that appeal, there are some that believe his chances of success are actually pretty low.
Trump’s appeal process will begin in New York state, in the Supreme Court, Appellate Division, First Department.
Roger Stavis, a former New York City prosecutor who currently serves as a defense and appellate lawyer, recently wrote an op-ed for The New York Times detailing what he believes will be Trump’s outlook in this process.
He wrote:
“I have argued hundreds of cases at this court. I’ve looked closely at the Trump case. The burning question now is, could his conviction be reversed on appeal? My answer is, the chances of that are not good.
“Mr. Trump’s legal team can approach his appeal on several fronts, but only one, concerning the legal theory behind the falsifying business records charge, is likely to hold out anything more than the slimmest of hopes for the former president.”
As Stavis wrote, only about 4% to 6% of all cases that the Appellate Division, First Department, has heard in recent years have been overturned.
He adds that in order for a jury’s verdict to be reversed “on account of an error,” the court has to find that the error in question led directly to Trump’s conviction. Technical errors don’t rise to that level, he wrote, which wouldn’t result in a reversal.
The best example of such an error, Stavis wrote, happened during the direct examination of Stormy Daniels by the prosecutor. During that testimony, intimate details of Daniels’ alleged encounters with Trump were revealed.
Trump’s defense team argued that these details made it appear as though the encounter wasn’t consensual, which then led to the jury being prejudiced for the rest of the case. His team tried to get a mistrial as a result, but the judge in the case denied that request.
Even if Trump’s lawyers argue this point during the appeal, Stavis said they likely won’t win. As he wrote:
“If this supposedly prejudicial testimony is put to the judges on the appellate court, they would ask if the lurid portions of Ms. Daniels’s testimony caused the jury to convict Mr. Trump. The answer here is a clear no.”
Trump’s defense team has cited some other issues that could be grounds for the case to be reversed. But, in all cases, Stavis doesn’t believe they will ultimately be successful.
Yet, he writes:
“If the Appellate Division has some concerns with the verdict, it will probably focus on the legal theory that provided the framework for the trial. This will offer the strongest chance for a successful appeal.
“That theory was novel and unprecedented. Falsifying business records in the first degree is one of the most common business crimes prosecuted by the Manhattan district attorney’s office.
“The basic crime is a misdemeanor, but it is elevated to a felony when the false entry in a company’s business records includes ‘an intent to commit another crime or to aid or conceal the commission thereof.’”
It’s that last statement on which the prosecutors based their case, and which Trump’s lawyers could argue was done so incorrectly.
