>> john: right now we are on verdict watch as the 12 person jury in the ninth hour of deliberation. trump's historic near criminal trial. are we any closer to a verdict? hello i am john roberts in washington. what do they, sandra? >> sandra: the predictions are definitely out there. everyone has got in their mind when they think this could happen but we are watching everything omitted of it and looking for any updates from the courthouse. i am sandra smith in new york this is "america reports." seven men and five women making up that jury are currently deliberating 34 felony counts against the former president. they spent most of the morning rehearing instructions and testimony from two key witn witnesses. it is unclear how long deliberations will last. the rnc chair told us last hour that whatever happens it won't stop donald trump from getting his message out. >> i think it changes the way we have to campaign, you know? if you are not going to be able to take a guy that can go around the corner to a bodega and have a series of conversations with folks and turn it into a 48 hour news cycle. or a construction site in downtown new york at 6:30 well donald trump -- while joe biden is still in bed. he is going to be able to communicate directly with the american people. >> john: let's bring in our panel live from outside the courthouse andy mccarthy and trey gowdy. tray based on what we heard in the read backs and rereading of the jury instructions, what do you expect the jury is going to be deliberating on this afternoon? >> who knows? and i know that's not what you want me to say. i know you want more insightful device. advice. the more cases you've tried god knows how many they've tried together, there's no way to know other than right now there seems to be at least some disharmony. i don't want to say discriminate yet, but all jurors are not singing out of the same hymnal would be my guest. someone for call testimony differently. some of them need to be reminded of the fact that cohen pled guilty and there may be a nonprosecution agreement is not evidence of donald trump's guilt or be closer to a verdict? we are closer to a resolution whether that is a verdict or not, i don't know. >> sandra: and he are you seeing any signs of disagreement within that jury? >> i think trey is right. it's too early to say that. really, i thought the first notes, sandra, were in the nature at least some of them of getting organized going back because it had been five or six weeks since they had heard certain testimony to be refreshed on that. i also thought it was possible the jurors didn't realize until after they had heard the instructions that they weren't going to be given a copy of them. so that may be one of the reasons they wanted to hear them back again. so i will say what trial lawyers say which is we will know more with the next note. and we will see if we actually do. >> john: so in this we brought this with brett a moment ago, trey in this 55 pages of instruction to the jury, on page 31 there was this instruction to the jury. although you must conclude unanimously that the defendant conspired to promote or prevent the election to any person in public office by lawful means you need not be unanimous as to what goes on lawful means were. he gave them three choices. as we said with brett tolman i want to get your take on this. you could have a potential scenario where four of the jurors say well we think it's a federal election campaign act violation. and many other h jurors say no we don't think he is guilty of that. four of them saying what we think he is guilty of the publication of other records. and the other eight say no we don't think he is guilty of that. than four more of the jurors say we think he is guilty of tax violations and the other 8 say we don't think he is guilty of that so if you have any one point it is possible they could be unanimous in all of this but if you at any one point have jurors saying no he's not guilty guilty of that, how do you come to a decision? >> it's really unprecedented and that's why professor turley and andy and i and others almost unanimously have been dumbfounded by the way this -- i mean i would have required if i were the judge a special verdict form. if you want him guilty of the underlying misdemeanor, that's fine, but tell us what tuxedo you were putting on that misdemeanor make it a felony. you have three options? right now what is clear is it you can be unanimous in your lack of unanimity. and that is just not the foundation of our criminal justice system is not kind of a buffet where you can pick which desert you want. how do you defend yourself if you don't know what that second crime or attempted crime would be? >> sandra: andy, we are in this lunch break so i guess we won't get anything right now. ware that does the afternoon go? how late does this go? can you give us anything? i mean it was about 3:00 yesterday when we got a note the alarm went off, right? >> yes, well i think i can give you two thinks. one is i think we know they are not going later than 6 today, but with the judge said it will be up to the jury how close to y go up to 6 or not but we did hear that yesterday. the second thing is as john and trey were having that exchange it occurred to me that if the four of us were considering that question about do you think it's the federal election campaign, do think it's the state election law, do you think it's the tax law? if the four of us were having that discussion and we could not agree on that, we say if the judges instruction on reasonable doubt means anything that if we can't agree on that than there has to be doubt? if we can't agree on that question which is a quarter of this case mainly what is the crime that exacerbates this still misdemeanor into a felony, if that's not doubt i don't know what doubt is. >> john: yeah i mean if we were sitting around and said okay, you take number one and trey you take number two and i will take three and center will take four and we will go and say we have come to a unanimous decision it doesn't quite meet that >> it doesn't. look, i mean there is a reason they could not go forward on the misdemeanor. they missed statute of limitations they are trying to dress it up. i don't care if your name is donald trump, donald smith, donald jones, that is not composing out the fundamentals of a justice system that has been worth emulating where you can convince someone based on a crime and when the verdict comes back we still won't know. they don't have to tell us, john. there is no special verdict form where you say three of us pick this and five of us pick that. i mean, we will never know unless you interview the jury. speak i guess that's the point, right andy? >> it's a big question, sandra i think we ought to be asking. why don't we have the verdict? i mean why didn't we have the jury instructions? this is not the florida case, right? where it's all classified documents? this is stuff that is typically on the public record so we can look at it. to repeat something i said before, when i was a prosecutor, i wanted to weigh in and influence everything that went into the jury room. it is very important what that all looks like because some documents can be designed in a way that is leading the jury to a particular conclusion. we ought to be able to see that there is no reason that should not be on the public record and it might give us a bench or stomach better read on what's going on here. >> john: andy, tray, thank you so much for letting us off this hour. we will spend more quality time with each other before this is all over but thank you, gentlemen. >> sandra: thank you, and you think you come and trey await a verdict how would an appeals process unfold if donald trump was found guilty question merck cb cotton joins us with that part of the story. how does this appeal process come into play with this upcoming election? >> hi, sandra more than five months out until the election so with former president donald trump found guilty on all or some of these charges the appeals process could buy trump some time to challenge the conviction before the november election. he would have 30 days to file a notice of appeal to new york's division. the eric trump's legal team would likely request that any punishment be put on hold while the appeals process plays out. it would be up to an appellate judge on whether that request is branded, but fox legal experts don't think it will come to this because they believe the judge would likely weigh trump's status as a former president in the case of a potential senate save. >> he is under the control and council supervision of the secret service. there is no need to have home confinement or restrictions pending any sentencing and he will immediately appeal anyways. >> as for a potential conviction, there are a few grounds trump steam could appeal to have a guilty verdict versed. one theory is for trump's lawyers who argue testimony from and told him star stormy daniels was prejudicial. during daniel's tear down my testimony trump's lawyers called twice for a mistrial as they argued that the level of detail she provided was "unnecessary" both of those requests were denied by judge juan mershon. trump a positivist defense team may also try to seek an appeal on the grounds of the novel legal strategy being used by prosecutors in this case. once again trump is charged with 34 felony counts of falsifying business records. and like we have been talking about those charges were elevated to felonies because prosecutors alleged trump used the records to cover up a second crime of the violation of a state law which prohibits promoting a candidate selection through "unlawful means." a lot to unpack and follow with this one, sandra. >> sandra: there is and you did a great job. cb cotton on that, thank you. on? >> john: thank you, jury deliberations under way we will break down what we learned from the jury knows is criminal mark eiglarsh. >> sandra: plus we learned president trump's fate whatever that is will president biden be celebrating a possible conviction? we have brian kilmeade on deck. >> this program is brought to you by -- what if there is an investment strategy, a product, where your retirement money and investment portfolio could go up with the stock market lock in your gains? and when the market goes down, you don't lose anything. forward with your money. never backwards would have that investment strategy, that product actually existed? good news! it does! if you have at least $100,000 to invest, get your investor's guide and see if it's right for you. the day you get your clearchoice dental implants makes every day... a "let's dig in" day... mm. ...a "chow down" day... a "take a big bite" day... a "perfectly delicious" day... - mm. [ chuckles ] - ...a "love my new teeth" day. because your clearchoice day is the day everything is back on the menu. a clearchoice day changes every day. schedule a free consultation. oh, my leaffilter? i just scheduled an appointment online and the inspection was a breeze. they explained everything. leaffilter's technology protects your gutters for good! now my home is protected. call 833 leaffilter or visit leaffilter.com with absorbine pro, npain won't hold you back from your passions. it's the only solution with two max-strength anesthetics to deliver the strongest numbing pain relief available. so, do your thing like a pro, pain-free. absorbine pro. >> sandra: we are on verdict watch as the 12 person jury enters its ninth hours of deliberations now. before the lunch break jurors did request a review of roughly 29 pages of jury instructions and the jury also requesting to rehear witness testimony. let's ask mark eiglarsh criminal defense attorney who joins us now. mark, great have you back. what does that tell you? >> it tells me that jurors are doing what they have sworn. that is to find out what of the fact? they have to agree on what the evidence proved and then see whether an application to the law whether each of the elements of every single of the 34 counts whether those elements were proven. till they are doing their job. they are not rushing to judgment. >> john: you know, mark, it can be a fool's game to read the tea leaves of jury requests and what they are thinking so let me get you to read the tea leaves if you will. based on what they ask for what are you thinking they are thinking about? >> no, i won't do that. i could tell you it means they are human because, like me, they can't grasp the 55 pages of jury instruction single-line read to them in an hour and they don't have a grasp of that without having it read back to them. they are human. so i think that's a good thing. they want to know what specifically has to be proven. >> john: when we think of it they wanted read back 29 of the 55 pages, that is an awful lot of things they wanted to have reinforced. >> its thick exmac it's really think i've read of the few times it's not easy to understand. even if they had a copy which i wish they did. >> sandra: do you anticipate more questions? >> yes. yeah. more questions and that just means they are being diligent, they are being thorough they are not just saying yeah, whatever they going through it. when someone says wait remember what that missed the mike witness said three weeks ago no i don't. they may want some of this read back to them. it means they are being tho thorough. >> john: let's go back to that point we talked to trey gowdy and andy about it and brett tolman as well, this idea there is a cafeteria choice of what the underlying predicate crime is here that bumps this up to a felony. typically juries go in and they have to decide on a specific set of facts. they don't have a multiple-choice. maybe they have multiple choice for is a second-degree murder or aggravated manslaughter or whatever but they don't have multiple choice for this nebulous thing that ties it into a felony and supersedes the statute of limitations. so what do you think these jurors are going through trying to figure that out and then there is the idea that if a bunch of them may disagree with the others but they are still trying to come up with something that says we are unanimous? >> yeah, add that to the list of what makes this case unique and arguably bizarre. mean most cases don't have pornstars describing whether or not the defendant were a condom. after defend them of the things the judge has done this is not him, he should did not write this law appear in the law was created by the legislators. and the legislators say they don't have to agree on the specific crime that he either intended or concealed. so they cannot be unanimous on that but they have to be unanimous that he did commit the underlying offense of falsifying business records with the intent to commit one of the three crimes that prosecutors laid out. >> sandra: mark, jonathan turley has been joining us through our coverage on earlier he said this on the jury requests. >> it's interesting that three of the four transcript portions they asked for are actually david pecker which may show that he is more credible than. >> let's get your thought on that. >> speculation. he may be right he may be wrong, you really don't know. you don't know i once had jurors come out and ask the question what does instead of does they spelled it d-o-s-e unanimous mean? they didn't know. they came out, you don't know what they are thinking. >> john: we know from the makeup of the jury they seem to be pretty astute people. >> right. >> john: let me ask about the potential for sentencing here if trump were to be found guilty and he didn't seem to show some sort of resignation to the fact that he might be. i would imagine putting him in jail is logistically not a good thing to do. it has been talked about confined at home? potentially, he has the secret service they are. but the secret service is not there to keep trump at home, they are there to protect them. there are also a federal agency and it's not their job to do it so would you imagine they would post a sheriff department deputies outside of trump tower could to give them an ankle bracelet? >> the answer is yes, they could give him an ankle bracelet. it would not be difficult to monitor his location. quite frankly, house arrest could be given with still permission for him to leave for limited purposes. so it's not total lockdown. it's only up to the judge. this judge can impose a big time trial tax if he wants to end that's what it's called when you dare to go to trial in my division we have to send a message that, you know, you will pay for it. so there could be that. i think most likely he will either be put on house arrest or probation because i can't picture anyone who runs a jail or prison who can say i can keep that man save. i guarantee it. >> sandra: anticipation is surely building we are in our 9, 9.5 hours of deliberation so far and they continue mark, thank you. >> thank you. >> john: thanks, mark. >> because black americans voted kemal and i are president and vice president of the united states because of you. that's not hyperbole. >> john: if black americans are to deliver the white house for joe biden he has work to do. polls show him losing support with those voters well trump is making big gains. >> sandra: plus the president has indicated for his team has indicated he is planning to speak following the verdict of trump's criminal trial. should he? 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