Will the Ostrich defense work?
While I probably would like to see Trump indicted and convicted somewhere for something more than most, I'm not optimistic. Here's one example of why that is:
Bill Barr seems to have captured Trump's relationship with objective facts perfectly:
“There was never an indication of interest in what the actual facts were,” Barr said.
Consequently, we're hearing an awful lot of talk about "willful blindness" or "deliberate ignorance" "jury instructions," but it's worth noting that even though a lot of such instructions might allow a jury to find Trump guilty, not all such formulations would.
For example, the 9th Circuit Pattern Instructions would appear to let Trump off the hook, even if he should have known, as long as he "actually believed" the election was stolen, or, really for that matter, anything else.
5.8 DELIBERATE IGNORANCE
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:
1. was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and
2. deliberately avoided learning the truth.
You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant’s automobile], or if you find that the defendant was simply negligent, careless, or foolish.
This instruction, btw, seems to be way out 9th Circuit stuff, and there are plenty of instructions given and affirmed by other courts that would let a hypothetical jury convict, but I'm willing to bet that Garland and Willis are weighing the problem very carefully, and maybe also thinking about the implications for future prosecutions if Defendants can't be convicted if they "actually believe" in their own alternate facts.
Bill Barr seems to have captured Trump's relationship with objective facts perfectly:
“There was never an indication of interest in what the actual facts were,” Barr said.
Consequently, we're hearing an awful lot of talk about "willful blindness" or "deliberate ignorance" "jury instructions," but it's worth noting that even though a lot of such instructions might allow a jury to find Trump guilty, not all such formulations would.
For example, the 9th Circuit Pattern Instructions would appear to let Trump off the hook, even if he should have known, as long as he "actually believed" the election was stolen, or, really for that matter, anything else.
5.8 DELIBERATE IGNORANCE
You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:
1. was aware of a high probability that [e.g., drugs were in the defendant’s automobile], and
2. deliberately avoided learning the truth.
You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant’s automobile], or if you find that the defendant was simply negligent, careless, or foolish.
This instruction, btw, seems to be way out 9th Circuit stuff, and there are plenty of instructions given and affirmed by other courts that would let a hypothetical jury convict, but I'm willing to bet that Garland and Willis are weighing the problem very carefully, and maybe also thinking about the implications for future prosecutions if Defendants can't be convicted if they "actually believe" in their own alternate facts.
