Courted

We’ve been talking a lot about New York state courts lately for the obvious reason that Donald Trump’s first criminal trial, from among his four indictments, is taking place there. As I’ve been discussing the case on TV this week, it occurred to me that explaining something about them that confused me as a first-year law student might come in handy.

We’re used to federal courts, where there is:

• a trial court called the district court,

• an intermediate appellate court called the Court of Appeals, and,

• a high court called the Supreme Court, whose word is final.

Not so in New York. In state court in New York, felony cases are tried in the supreme court. That can get confusing if you’re unaware that what we’re used to thinking of as the high court in the federal system is the name of the trial courts in New York! New York’s intermediate appellate courts are the Appeals Division of the Supreme Court, and cases from Manhattan are heard by the First Department. New York’s highest court is called the Court of Appeals.

So, when you hear talk of the Supreme Court next week, remember, that that’s the trial court where Judge Juan Merchan is presiding over Donald Trump’s criminal trial. Of course, that will get confusing later in the week when we focus on Trump’s presidential immunity appeal. Oral argument in that appeal, in the Special Counsel’s election interference case in federal court, will be heard by the U.S. Supreme Court in Washington, D.C.

Thank the state of New York for making this more confusing for us than it already is.

If Trump is convicted at trial, he can appeal to the Appellate Division. If he loses there, he can ask the Court of Appeals to hear his case. Much like the U.S. Supreme Court, the Court of Appeals is not required to take the case, and relatively few requests are granted, although it might be more inclined to hear a Trump appeal if novel issues are involved. A request for permission to appeal to the Court of Appeals is called a “leave application.”

Along the way, Trump can, as we’ve seen him do in the past week, appeal interlocutory decisions by the Judge. Interlocutory orders are ones issued by a judge during litigation to deal with the variety of issues that come up. They are preliminary to the final judgment in the case, which, in a criminal case, is the decision to convict or acquit the defendant. In the federal system, very few interlocutory orders can be appealed—we’re seeing one of the rare exceptions with the immunity issue. For the most part in federal cases, interlocutory orders stay in force for the trial and are only appealed after a conviction.

But New York law is much more permissive when it comes to interlocutory appeals. A defendant can appeal an interlocutory order if it decides part of the merits of the case or “affects a substantial right.” We’ve seen Trump try this route recently, attacking Judge Merchan’s decision that he need not recuse himself and also arguing he can’t get a fair trial in Manhattan. Trump cannot take those matters to the Court of Appeals unless they agree to hear them, and perhaps most importantly, unlike the D.C. case, where there is a stay in place during the appeal, the trial moves forward.

It looks like it's really happening. The jury has been sworn in. The case is ready to go.

On Friday afternoon, the judge, exasperated by the Trump lawyers’ ongoing efforts to delay the trial, finally told them sternly, "We're going to have opening statements on Monday morning. This trial is starting."

We’re in this together,

Joyce