Jack Smith and the Thought Police

There was a time when it was safe to assume that we had all read George Orwell’s novel, 1984. But that time has passed, and there are many readers who have undoubtedly heard references to this seminal work, without having actually read the book. Therefore, a brief refresher course on one of the principle concepts from this novel is necessary – the theory of thoughtcrime.

“Even if someone leaves these thoughts unspoken, it is still a crime to think them. It is one of the scariest parts of Winston Smith’s world in 1984. The person who thinks these thoughts is held responsible for them as though they said them out loud or committed the act they were thinking about…To understand thoughtcrime, it’s important to understand the consequences of committing it. If one were to have illegal thoughts and those thoughts showed on their face, or they expressed them in some way, they’re going to be arrested by the Thought Police. This group is responsible for hunting down thought criminals and bringing them to the Ministry of Love. This aptly named ministry reforms and kills thought criminals.”

With this description of “thoughtcrime” in mind, let us review some of the allegations made in Special Counsel Jack Smith’s August, 2023 federal indictment of former President Donald Trump: “(F)or more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false… The Defendant…made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election…These claims were false, and the Defendant knew that they were false.”

How is it that Jack Smith knows what Donald Trump was thinking? According to the indictment, “the Defendant was notified repeatedly that his claims were untrue—often by the people on whom he relied for candid advice on important matters, and who were best positioned to know the facts— and he deliberately disregarded the truth.”

In other words, Donald Trump knew that there wasn’t any “outcome determinative fraud” in the 2020 presidential election because other people told him so.

And who were these people that told Donald Trump there was no evidence of “outcome determinative” election fraud in the 2020 presidential election? According to Smith, these people included “Vice President (Mike Pence)…(who)…told the Defendant that he had seen no evidence of outcome-determinative fraud.” There were also “(t)he senior leaders of the Justice Department…(who)…told the Defendant on multiple occasions that various allegations of fraud were unsupported;” “Senior White House attorneys…(who)…informed the Defendant that there was no evidence of outcome-determinative election fraud,” and “State and federal courts…(who)…rejected every outcome-determinative post-election lawsuit filed by the Defendant, his coconspirators, and allies, providing the Defendant real-time notice that his allegations were meritless.”

As a result of Donald Trump’s refusal to accept that he had actually lost the 2020 presidential election, and based upon the former President’s “false” belief that election fraud was pervasive in that election, according to the indictment, “The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted.”

These allegations regarding what Trump chose to believe would seem to fit the very definition of a thought crime. From all appearances, Trump believed there was election fraud, that it was indeed “outcome determinative,” and as a result, he challenged the results of the election in every way possible.

In a criminal case, the prosecution must establish that a defendant has mens rea; that is, criminal intent. “The literal translation from Latin is ‘guilty mind’…(e)stablishing the mens rea of an offender, in addition to the actus reus (physical elements of the crime) is usually necessary to prove guilt in a criminal trial. The prosecution typically must prove beyond reasonable doubt that the defendant committed the offense with a culpable state of mind.” As stated by the US Supreme Court in Staples v. United States, “(t)he mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct.”

The analysis concludes tomorrow

Judge John Wilson served on the bench in NYC

Illustration: Pixabay

Quick Analysis

New York Injustice, Part 2

As is well known, for a jury to find a defendant guilty of a crime, that jury must be convinced that the prosecution has proven their case beyond a reasonable doubt. According to the New York State Jury Instructions, “[a] reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.” The fact that the Medical Examiner came to her conclusion without benefit of the toxicology report, and the fact that those drugs contributed to Neely’s death, would be enough to create a reasonable doubt that Penny had acted recklessly. The testimony from the DA’s own witnesses, attesting to their fear of Neely, would also serve to establish the justification defense. Nevertheless, the jury deadlocked during deliberations on the top count, Manslaughter. They could not agree on whether or not Penny had acted in a reckless fashion in restraining Neely. It was then that something strange and unprecedented happened. As described by The New York Post, after the jury had sent out their second note reporting that they could not agree on the first count, “[t]he judge suggested that he might consider ordering a mistrial in the whole case rather than order one on just the top charge as jurors considered weighing the second. Wiley said he would have done this so as not to lead to a ‘compromise verdict, which New York state courts try to avoid’… Assistant District Attorney Dafna Yoran could then be seen pacing around the courtroom on her cell phone and talking to District Attorney Alvin Bragg’s office staff in the front row of the gallery. The veteran homicide prosecutor left the room, but returned minutes later alongside Steven Wu, the chief of the DA’s office’s appeals bureau. Wu then argued to the judge that axing the manslaughter charge would eliminate the threat of a compromised split verdict.” Despite a strenuous objection from the defense, Judge Wiley agreed to dismiss the top count. “‘I’ll take a chance and grant the people’s application,’ Wiley said, instructing the jury to return Monday and deliberate the charge of criminally negligent homicide.” Take a chance? With a man facing years of imprisonment? The defense argued that dismissing the top count at this stage of the trial “presented a violation of state laws and could encourage a precedent where prosecutors overcharge from the start, knowing they can downgrade charges later on the fly if their case doesn’t stand up. ‘[There is a] risk here of a coercive verdict or a compromised verdict…New York is clear that compromised verdicts are discouraged,’ Penny’s lawyers told the judge. ‘It would force them into what we would submit would be manufactured, as to the lesser count of criminal negligence.'” In other words, Penny’s lawyers believed that dismissing the Manslaughter charge just because the jury couldn’t agree on that charge, would signal to the jury that they should convict on the Criminal Negligence charge. What Judge Wiley seems to have forgotten is that dismissal of the top count was unnecessary. Under New York Criminal Procedure Law Section 310.70, “[i]f the possibility of ultimate agreement with respect to the other submitted offenses…is so small…the court would be authorized to discharge the jury…the court must terminate the deliberation and order the jury to render a partial verdict with respect to those offenses and defendants upon which or with respect to whom it has reached a verdict.” This means that the Judge could have ordered the jury to bypass the Manslaughter charge, go ahead and deliberate on the Criminal Negligence charge, and if they could agree on that charge, either come back to the Manslaughter charge, or report their verdict on the Criminal Negligence charge. Did Judge Wiley want to see a conviction so badly that he forgot this fundamental rule of trial? Was he on the side of the prosecution , and decided to tip the scales in their favor? Or did he just not care, and want the trial over with one way or another? In any of these scenarios, Judge Wiley created an appellate issue for Daniel Penny that would have certainly led to the reversal of any conviction. If the Court meant to signal to the jury that they should convict on the Criminal Negligence charge, that hint backfired. When the jury returned to their deliberations, Penny was quickly acquitted of the remaining charge. To “take a chance” and follow the advice of Alvin Bragg’s office, rather than research the law applicable to the situation points to a disturbing trend in the New York Courts. We have witnessed the unfair and frankly illegal trial conducted by Judge Juan Merchan in New York County Supreme Court. https://www.usagovpolicy.com/did-trump-receive-a-fair-trial/ Now we have witnessed a possibly inadvertent, but just as unfair, attempt to place a thumb on the scales of justice against a criminal defendant in a politically charged case. At this stage, it is fair to ask if the judges who sit in New York County Supreme Court are fair and impartial, or if they are there to enforce the will of Alvin Bragg and his brand of racial and progressive injustice. Judge John Wilson’s (ret.) served on the bench in NYC Photo: Pixabay