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"The defense is insisting that if this were not Previous Guy, we wouldn't be here." [1]
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Date: 2023-05-08
x Good morning from New York.
Before closing arguments kick off in E. Jean Carroll v. Trump, the attorneys are hashing out jury instructions at a pre-trial conference.
Follow along at @LawCrimeNews. — Adam Klasfeld (@KlasfeldReports) May 8, 2023
One issue that Trump lost already:
His attorneys objected to an instruction on the ex-president's financial condition, arguing the jury received no evidence about it.
Carroll's team argued that the jury heard evidence that Trump's a "star" and business owner.
Judge agreed.
Arguments turn to the Law & Order episode dispute.
Carroll's attorneys want an instruction that there's no evidence about the existence of the show.
Recap in this thread: Unroll available on Thread Reader
Judge Kaplan noted that Joe Tacopina told him in a sidebar that the exhibit was offered "not for the truth, but for her response that is relevant."
The judge allowed it on that basis.
That final issue appears unresolved:
The judge did not appear to say that he'll accept the plaintiff's proposed jury instruction on the Law & Order SVU episode.
But he made clear that Trump didn't enter the evidence for the truth of the matter.
That clarifies matters, somewhat, about how Joe Tacopina may invoke the episode during closing arguments.
It also sets the stage for a possible fight if Carroll's legal team believes he crosses a line.
Pre-trial hearing over.
Closing arguments coming up later this morning.
Roberta Kaplan:
"You saw for yourself. E. Jean Carroll wasn't hiding anything."
Her testimony was "credible," "consistent," and "powerful."
Roberta Kaplan shows the clip of Trump's deposition video where he mixes up Carroll with Marla Maples. Unroll available on Thread Reader
"Mr. Trump pointed to Ms. Carroll, the woman he supposedly said was not his type." [...]
"He only corrected himself when his own lawyer" corrected him.
Trump "did why he always does" when caught: "He made up an excuse," saying that it was "blurry." Kaplan:"Mr. Trump pointed to Ms. Carroll, the woman he supposedly said was not his type." [...]"He only corrected himself when his own lawyer" corrected him.Trump "did why he always does" when caught: "He made up an excuse," saying that it was "blurry."
Kaplan on Trump:
"He grabbed her, using his words, 'by the p----.'"
Robbie Kaplan shows the clip of Trump saying stars "historically" grab women, "unfortunately or fortunately
"Who would say 'fortunately' to describe" an act of "sexual assault?" [...]
"He thinks stars like him can get away with it."
Robbie Kaplan on Trump skipping trial:
"He didn't even bother to show up in person."
Robbie Kaplan on Trump's video deposition:
"In a very real sense, Trump is a witness against himself." [...]
Trump "knows what he did. He knows he sexually assaulted E. Jean Carroll."
Robbie Kaplan hashes out the timeline.
Carroll said it happened while she had her TV show "Ask E. Jean," which aired between July 1994 to July 1996.
She says she wore wool dress with tights, but no coat, which provides a hint on the weather, Kaplan said.
Carroll said it must have happened after her friend Lisa Birnbach published her piece on Mar-a-Lago, which was February 1996.
Robbie Kaplan explains to jurors why they showed Roger Ailes' interview with Trump.
She noted that Ailes talk show was shot in the same building, on the same network, where Carroll's show was taped.
Trump would have seen the end of Carroll's show if he watched his own interview with Ailes, unless he switched it on at the exact moment, Robbie Kaplan notes.
Robbie Kaplan notes that the ex-Bergdorf Goodman exec witnesses testified that traffic in the lingerie department was very low on Thursday evenings, especially in the early spring.
Robbie Kaplan on Carroll telling Trump to try on lingerie:
"I think we understand what was happening. This was a combination of humor and flirting." [...]
"It was a joke. Ms. Carroll could see the joke in her mind's eye." [...]
"The point was that it was funny."
Robbie Kaplan on what Trump allegedly did to E. Jean Carroll:
"He grabbed her by the p----, or vagina — I'm sorry for my language."
, Trump attacked her from his White House perch, Kaplan says.
Concerned for her security in the blowback, Kaplan said, Carroll started sleeping with a loaded gun in her bed. After Carroll went forward in the wake of #MeToo , Trump attacked her from his White House perch, Kaplan says.Concerned for her security in the blowback, Kaplan said, Carroll started sleeping with a loaded gun in her bed.
Robbie Kaplan quotes psychological expert Dr. Lebowitz as saying: "People have really strange, really unexpected reactions to traumatic situations all the time."
Though Tacopina suggested Carroll not screaming was implausible, the expert testified that screaming "is one of the least likely things to actually occur," Kaplan noted.
Kaplan says that Carroll remembers the alleged rape in "vivid, technicolor detail." [...]
"She remembers the sound of Trump's heavy breathing as he was facing the wall next to her neck." [...]
"She remembers certain things vividly, and other things, not so much."
Kaplan:
"The psychological expert in this case believes Ms. Carroll."
Robbie Kaplan summarizing Trump's defense:
"If a woman is going to accuse a man of sexual assault, she must play the part."
Robbie Kaplan, later, on that subject:
"That's just plain wrong."
Kaplan refers to the "Big Lie" at the heart of Trump's defense: That Carroll, Lisa Birnbach and Carol Martin are all lying.
"I'm sorry. Seriously? That's just ridiculous."
In fact, Kaplan notes, Martin and Birnbach's independent texts affirm that Carroll told them in 1996.
Martin's private text refers to a "simple chat with a friend 25 years ago."
In another, Birnbach wrote Carroll: "It wasn't political in 1996 when you told me. It was personal."
Robbie Kaplan notes that these were candid text messages that neither of them wanted exposed to the world during discovery:
"These were private texts that Carol Martin and Lisa Birnbach never expected to see the light of day."
Martin's same text messages that showed unflattering statements about her friend E. Jean Carroll also showed them alluding to their 1996 conversation, where Carroll said that Trump attacked her.
In order to win, Trump needs jurors to conclude that all three women perjured themselves in the courtroom, Kaplan notes.
She adds that they know that didn't happen.
Kaplan shows a chart of Carroll, Stoynoff, and Leeds allegations.
All share the following elements: "Semi-Public Place," "Grab Suddenly," and "Not My Type."
All fields are checked off for all three women.
Kaplan notes that they share another similarity:
None of them screamed.
Kaplan says that Trump's case boils down to a claim that everyone is lying:
"As Bugs Bunny used to say at the end of the Looney Tunes [episodes] that I loved as a kid, 'That's all folks.'"
Kaplan asks jurors to reject that Carroll roped in several witnesses to give sworn testimony to an "extreme hoax."
Kaplan adds on that, later:
"Does that make any sense at all, or does that suggest that there is one person here who's lying — and that that person is Donald Trump?"
Kaplan:
Trump isn't offering a "middle ground" and doesn't admit that he was in Bergdorf Goodman.
He doesn't claim there was consent.
He claims that every "sworn detail" is a lie.
Kaplan:
"You have to conclude that Donald Trump, the nonstop liar, is the only person in here telling the truth."
News—
Robbie Kaplan says she will decline to offer a specific damage award request.
Robbie Kaplan:
"For E. Jean Carroll, this lawsuit is not about the money."
Instead, she says, it's about getting her "name back."
Early lunch recess.
Defense summations next.
Joe Tacopina's defense summation begins:
He tells jurors they're going to take a "journey to justice."
Tacopina:
"One thing in this country that cannot be compromised, that could not be bent, [...] is the justice system."
"It's our defense against all tyranny."
Tacopina:
People have "strong feelings" about Donald Trump, one way or another.
As he said in openings, he said the place to express that is the "ballot box."
Tacopina reprises his comments from the beginning:
No one's above the law. Absolutely, but no one's below it either.
Another one:
"Politicians don't make this country great. Jurors do."
Tacopina contests framing that it's everyone else's word against Donald Trump. He claims Carroll's own testimony discredits her:
"He didn't tear apart her story. She tore apart her story."
Tacopina shows another clip from Trump's deposition, showing his client's response to a question about whether Trump reached out to Bergdorf Goodman:
"I didn't have to reach out to anybody because it didn't happen."
Trump on E. Jean Carroll in the deposition, shown to the jury now:
"I think she's sick, mentally sick."
Joe Tacopina:
"That was his under oath testimony saying it's not true. I didn't do it."
"For some reason, she held onto this photograph for three decades." He derisively discounts the notion that the image of the brief conversation shows Trump knew her. Tacopina on this photo:"For some reason, she held onto this photograph for three decades." He derisively discounts the notion that the image of the brief conversation shows Trump knew her.
Tacopina says Carroll's allegation forces the defense to prove a negative.
He compares it to an allegation of stealing a pen at an unknown date.
The only way to defend against it is to deny it, he says.
Tacopina accuses Carroll of inventing a detail about the rape allegedly happening on a Thursday on the witness stand.
"She tailored her testimony right in front of you."
He adds later: "What they want is for you to hate him enough to ignore the facts."
Tacopina on the testimony of Trump accusers Jessica Leeds and Natasha Stoynoff:
"They have nothing to do about whether you should believe E. Jean Carroll's unbelievable story."
Tacopina highlights his cross-ex of Leeds, whose testimony that Trump sexually assaulted her on a plane he calls "absurd."
Q: So it is your testimony that getting sexually assaulted on a plane is sort of just rigors of travel?
A: Yes.
Tacopina calls the testimony of the other accusers "distractions," saying they were called for the same reason they played the "Access Hollywood" five times.
He describes it as showing what Trump says women are "letting" stars do.
"It's crude, it's rude," he says.
Tacopina hammers the Law & Order SVU episode testimony hard.
Plaintiff objects, asking for a limiting instruction.
Judge begins: "There is a distinction to be drawn here, and ultimately, you will decide what to make of this if anything."
Judge tells jurors that the "alleged" episode was not offered for the truth of the matter.
He notes that the evidence before the jury was an email sent to Carroll about the episode.
Judge Kaplan:
If the email said the "moon was made of green cheese," jurors wouldn't need to conclude the moon was made of green cheese.
Tacopina's distinction:
When asked about the existence of the episode, Carroll replied: "I am aware, yes."
"This seems pretty clear evidence [...] that that episode existed."
Tacopina said:
"Back to the coincidence: 'Are you kidding me?'"
He refers to the transcript:
Q: What do you mean amazing? I assuming amazing coincidence?
A: Yes. Astonishing.
Tacopina derides allegation that his client would "risk it all" to rape someone across the street from Trump Tower, "within minutes":
"'Apprentice' over. Trump Tower over. Everything over."
Tacopina:
"Donald Trump is shopping in the most attentive, upscale store in New York City," possibly the "world."
He scoffs, later: "Sixth floor was 'The Walking Dead.'"
"That doesn't sound right, and I think you know that," he adds later.
Tacopina on Carroll:
"She needs to reverse engineer a story.
"She needed to create a scenario where no one else would be involved — No one else would be involved."
Tacopina:
"Her tights didn't rip after this 'colossal struggle.'"
Tacopina on Carroll's psychological expert Leslie Lebowitz:
"Her opinion here is meaningless because she has no firsthand knowledge of Ms. Carroll's claim."
Tacopina on the expert's report:
"This is an example of 'garbage in, garbage out.'"
Tacopina swipes at Carroll describing herself as a "massive" fan of "The Apprentice":
"You have to believe the show that she was a massive fan of was hosted by her rapist."
Tacopina swipes at expert Dr. Lebowitz's findings:
"Ms. Carroll doesn't have anxiety, doesn't have depression, doesn't have PTSD."
Tacopina shows this photo of a smiling E. Jean Carroll "gleefully" posing with, as he puts it, the likeness of her rapist.
(This is a plaintiff exhibit, from Carroll's "Most Hideous Men in NYC walking tour.)
Context: How Carroll explained her reaction. Unroll available on Thread Reader
Tacopina speaks about the lack of any entry in her diary about Trump allegedly raping her.
Carroll said that she never made negative entries in her diaries.
He says that a stipulation shows she wrote three negative entries.
Context: That's astonishingly few negative entries for her diary.
The stipulation also states:
Carroll turned over three diaries, each between 234 and 266 pages.
Three negative entries.
Those negative entries were about:
* being "distraught by political developments."
* her brother-in-law's death
* hurting her back.
Tacopina:
"I would never tell a rape victim how they should act."
He said that he asked her those questions because Carroll gave four different answers.
Tacopina on Carroll after coming forward:
"She became a star."
Tacopina plays one of E. Jean Carroll's podcast interviews for jurors.
In it, Carroll describing her getting her "revenge" on Elle for firing her because she's more successful going independent on Substack.
Tacopina claims that Carroll, Birnbach and Martin "colluded" to make up false accusations against Trump.
Tacopina notes that both Martin and Birnbach testified they never told anyone else about it. He noted that Martin never even brought it up on election night, 2016.
She didn't say: "Oh, my God. He's going to win. He raped my friend," Tacopina tells jurors.
Tacopina mocks Birnbach's testimony that she wasn't thinking of Trump allegedly raping E. Jean Carroll on election night 2016.
"I wasn't thinking about it," Birnbach said.
He says there's "no way that's truthful testimony."
Tacopina flags Carroll's message to Birnbach in 2019, about her conversation with NYT journalist Megan Twohey.
Carroll says she told Twohey:
"That I turned over the entire book to you when I got sick, and we agreed you would publish it when I croaked, and you never read it."
@gtconway3d "got his hooks" into her. Tacopina tells jurors that Carroll never planned to sue Trump until"got his hooks" into her.
Tacopina flags a reference to "George" in Carroll's testimony:
"George is George Conway: archenemy of Donald Trump"
ICYMI:
Carroll's closing arguments from earlier in the day, and what her attorney calls the "Big Lie" behind Trump's defense. 'He didn't even bother to show up': E. Jean Carroll's lawyer skewers absent Donald Trump and his 'Big Lie' as rape trial wraps"
Tacopina hits an email between E. Jean Carroll and Carol Martin, where the latter wrote the former on Sept. 23, 2017:
"As soon as we're both well enuf to scheme, we must do our patriotic duty again."
Martin referred to Trump as "Orange Crush" higher in the chain.
Tacopina:
"'Scheme' is exactly what you think it means."
He questioned Martin about it on cross-ex and is displaying it here for the first time.
In it, Carol Martin wrote the following to a third party, per the exhibit. Tacopina shows a message that Martin shared with a friend in 2021, which he calls "lethal" to Carroll's case.He questioned Martin about it on cross-ex and is displaying it here for the first time.In it, Carol Martin wrote the following to a third party, per the exhibit.
Tacopina says of the exhibit: "Game, set and match."
Tacopina:
"Facts are stubborn things."
He says E. Jean Carroll's story is "not worthy of your belief."
Tacopina:
"This is an absolutely outrageous case. It's an outrageous case."
Tacopina's closing line asks jurors to "please" have the "courage" to do what is "right" here.
20 minute recess.
Michael Ferrara begins rebuttal summations, telling jurors that Tacopina is a "very good lawyer."
But there's a difference between argument and evidence, he says.
Tacopina offered argument, he continues.
Ferrara skewers Tacopina's rhetoric about respect for the legal system "when his own client didn't have enough respect" to come into court.
"He never looked you in the eye and denying raping E. Jean Carroll."
Ferrara says that Lisa Birnbach and Carol Martin wouldn't stake their decades of professional credibility on a "harebrained" scheme to take down Donald Trump.
Ferrara scoffs at the notion that these three women "modeled their secret, secret scheme on one of the most popular shows on television."
He notes it's one seen by 6 million viewers.
Of the messages Tacopina calls "lethal," Ferrara says:
"Which is it? Are they in on a grand conspiracy to take down the president —" or was Martin gossiping and saying unkind things about her friend.
Ferrara says the defense theory doesn't pass the "smell test."
Ferrara, on what defense calls inconsistencies.
"Here's my point: No one lies like this."
Birnbach testified she put the rape claims out of her mind, even on election day.
If she were lying, Ferrara said: "She would tell you that she thinks of the assault often."
Ferrara continues:
"That's easier to understand — and who could prove her wrong?"
Birnbach said she put it out of her mind because "She told you the truth, not what you want to hear," he says.
Ferrara argues that the question of screaming is only relevant if Trump argued Carroll consented, but he didn't.
"If you're in the jury room asking whether Ms. Carroll consented, then she wins."
Ferrara:
"They didn't put on a defense case because they don't have a defense."
Ferrara notes that the defense "didn't call Mr. Trump to testify," and says jurors should conclude that he would have hurt their case, if he tried.
Ferrara continues to slam Trump on his absence:
"Mr. Tacopina criticizes Ms. Carroll's testimony, but she showed up."
Ferrara again praises Tacopina as a "good lawyer," adding that he knows how to "cherry pick" the transcript and exhibits.
@gtconway3d a "Democratic party lawyer." (He's a conservative.)
Carroll called her a "Republican lawyer."
"You don't need to be a Democrat to dislike that guy," Ferrara said, adding that "every time" Tacopina showed jurors something "it was out of context." Tacopina calleda "Democratic party lawyer." (He's a conservative.)Carroll called her a "Republican lawyer.""You don't need to be a Democrat to dislike that guy," Ferrara said, adding that "every time" Tacopina showed jurors something "it was out of context."
Tacopina has depicted Carroll as financially motivated.
If that were true, Ferrara said, they would have asked for exorbitant damages. They haven't specified a damages award request, and Ferrara says the lawsuit's about Carroll getting her name back.
Ferrara calls the "Access Hollywood" tape Trump's "confession."
"Locker room talk can be crude. I get it," Ferrara says, adding this goes beyond it.
Ferrara scoffs at arguments about Carroll going back to Bergdorf Goodman:
"If I get mugged outside the office, am I supposed to never go to work again because it'd be too triggering?"
Ferrara said:
"Ms. Carroll is entitled to find happiness in her life."
He says that the defense is setting up a picture of a "perfect rape victim."
Ferrara:
"That's the defense's out-of-date, out-of-touch view. It's offensive. It's wrong."
Ferrara ends with saying this isn't a 'he said, she said' case:
"There's not even a 'he said,' because Donald Trump never looked you in the eye and denied it," adding that the jury should find him liable.
Trial ends for the day.
The jury will get the case tomorrow.
• • •
[END]
---
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