"This judge has committed more reversible errors in the one day I was in the courtroom," Alan Dershowitz told Sean Hannity last night, "than I've seen in years and years of practicing law. It's just an outrage." Dershowitz has practiced law longer than Judge Juan Merchan has been alive, so that speaks volumes about the clown show currently on Broadway -- er, in a Manhattan courtroom. (I mean that literally; Dershowitz graduated from Yale Law in 1959, and Merchan was born in 1962.)

Dershowitz had a front-row seat, literally, for the blow-up between Merchan and defense rebuttal witness Robert Costello. "The judge went berserk," Dershowitz explained, after Costello reacted to one of his rulings on a prosecution objection. First, he kicked the media out of the courtroom, and then he scolded Costello for looking at him "comtemptuously. ... It was absurd!" Dershowitz exclaims (via Red State):

Alan Dershowitz reacts after visiting Trump trial and he can’t believe it- the judge went berserk pic.twitter.com/eOpmjrMZGh

— Karli Bonne’ 🇺🇸 (@KarluskaP) May 21, 2024

Dershowitz uncorked a Mae West reference that amusingly had nothing to do with the prosecution's other star witness, Stormy Daniels:

It reminded me of Mae West when a judge said, you're showing contempt for the court and Mae West said no, Your Honor, I'm trying my best to hide my contempt for the court. 

I'm sure Costello was trying to hide his contempt for the court, but the judge had such a thin skin that he threatened him. He said he would strike the testimony and hold him in contempt if he rolled his eyes again. You have a constitutional right to roll your eyes and to stare at anybody. It was absurd! 

As entertaining as Dershowitz' comments are, legal analyst/reporter Greg Jarrett's observations may be more of an indictment of the case and Merchan. The fireworks over Merchan's tantrum overshadowed an important point made by Costello in yesterday's direct testimony on rebuttal to Michael Cohen. Costello revealed that he attempted to warn Alvin Bragg and his prosecutors about Cohen and provide them with exculpatory evidence, but they had no interest in either:

HANNITY: What Bob Costello has been saying ... is that he spent an hour and a half on a Zoom call with Bragg's people, that he specifically pointed out exculpatory evidence that he said needed to be presented to the grand jury, and they purposefully didn't. Now, in a grand jury, we always hear you can indict a ham sandwich. Fair enough. But if a DA knows about exculpatory evidence, knowing the defense has no spokesperson there, don't they have a legal obligation to present that? Do you see possible legal issues for Alvin Bragg, possible legal or ethical issues for the judge, who should have recused in this case?

JARRETT: Oh, I absolutely do!  For everybody associated with this -- the prosecution and the judge. Look, a prosecutor has an affirmative duty that if he knows about exculpatory evidence, he must, he absolutely must, present it to the jury. Why? Er, in a grand jury. Because in a grand jury, there's no defense allowed! The defense attorneys don't come in there and present their side, it's one-sided. So the duty shifts to the prosecution. 

Here, they conjured up this phony excuse and said to Costello, 'Oh, we can't admit your exculpatory evidence because it's hearsay.' There is no hearsay in a grand jury! Double, triple, quadruple hearsay, even newspaper articles are submitted. So this is an example of, essentially, obstruction of justice by the people we expect to do justice.

I'm not so sure that prosecutors have an affirmative duty to present contradictory evidence in the grand-jury phase. In terms of overall administration of justice, that may be preferable, but a grand jury isn't a trial -- it's a process by which citizens determine if the prosecution has evidence that supports an indictment. The defense is often invited to testify and present their side to the grand jury, but defendants usually decline so as to avoid giving prosecutors an opportunity to poke holes in their defense before trial and set perjury traps for defendants. I don't recall whether Bragg invited Trump to testify, but Trump's attorneys  certainly would have declined.

Nevertheless, prosecutors do have an affirmative duty to conduct trials in a manner supportive of justice and not just to serve ambitions for conviction. If they ignored Costello's input on Cohen's veracity and put Cohen at the center of their case anyway, that certainly raises ethical questions about Bragg and the prosecutors that the state bar might want to explore. But even more, the decision to allow Cohen to testify falsely about the nature of a phone call while they possessed a text message that contradicted it comes pretty close to suborning perjury. That was the "Perry Mason" moment last week that shocked legal analysts, who wondered how the case could continue after that revelation. And that was before it became clear that Bragg had immunized Cohen from prosecution for embezzlement in the payments and ledger entries directly related to the case against Trump.

If Merchan allows this to go a jury, the most likely outcome will be a hung jury and mistrial. But if this jury convicts on the evidence at hand, this travesty will have to be addressed immediately by New York's state appellate courts ... and these questions will all become immediately acute, and excruciatingly embarrassing for the state judiciary.