Misleading Photo Suggests Trump Would Face an All-Black, All-Female Panel of Judges on Appeal

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The appellate court actually has 21 judges, and five would be selected randomly to hear his case.

By Alex Demas

A Manhattan jury on Thursday convicted Donald Trump on 34 felony counts of falsifying business records related to hush-money payments to Stormy Daniels in October 2016. Trump said Friday that he will appeal the conviction.

In a post on X (formerly Twitter) with more than 1.4 million views, Elijah Schaffer of Gateway Pundit asked, “Do you think Trump has a chance with the Manhattan appeals court?” and included the following photo:

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Schaffer’s post is misleading. While the women pictured are all members of the court that could hear an appeal to Trump’s case, they are only five of the 21 justices who could be selected to sit for the case.

Assuming Trump’s legal team appeals the guilty verdict, the case will be passed to the State’s Appellate Division, First Judicial Department, a branch of the New York Supreme Court. The First Department Appellate Division is made up of 21 justices, each of whom is appointed by the governor to five-year terms. A minimum of four and a maximum of five justices are randomly selected to sit in any given case, with the concurrence of three being necessary for a decision.

The five justices pictured in the post—Justice Bahaati Pitt-Burke, Justice Troy K. Webber, Presiding Justice Dianne T. Renwick, Justice Tanya R. Kennedy, and Justice Marsha D. Michael—are all members of the 21-person First Department Appellate Division. The photo was taken on February 24, 2024, after the five had been selected to hear arguments together in several civil cases, the first time an all-black bench had ever sat in the history of the First Department.

While all five of these justices should be available to sit for an appeal to Trump’s guilty conviction, the actual five would be chosen from the department’s full roster of 21 justices. The First Department Appellate Division confirmed to The Dispatch Fact Check in a call that this selection process is random, meaning it’s impossible to determine which five justices would be assigned to Trump’s appeal in advance.

If Trump were to lose on appeal at the First Department Appellate Division, he could appeal a second time to the Court of Appeals, New York State’s highest court.

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