Jury Has Likely Decided Trump’s Fate in Rape Case Already

On the first day of trial testimony Wednesday, E. Jean Carroll took the witness stand and provided unvarnished testimony that she was raped by Donald Trump in the 1990s. She testified: “I’m here because Donald Trump raped me, and when I wrote about it, he said it did not happen.”

She testified that she and Trump went together to the lingerie department on the sixth floor of Bergdorf Goodman, flirting. When they got there, Trump followed her into the dressing room and pushed her against the wall, knocking her head and disorienting her. He also pulled down her tights, stuck his fingers inside of her vagina—causing her great pain—and stuck his penis inside of her vagina, for a period of time, while she struggled against him.

This testimony is the key to the case. If the jury believes it, they will find Trump liable for the rape of E. Jean Carroll, and likely award her significant damages. If the jury does not believe it, they will return a verdict in favor of the former president.

Based upon more than 25 years of experience as a trial attorney, including service as an Assistant United States Attorney prosecuting sex crimes, I believe that it is highly likely that the jurors have already made up their minds about whether Carroll is telling the truth—before she has completed her direct testimony and long before Donald Trump’s attorneys have the opportunity to cross-examine her.

This case won’t be a “he said, she said” case—because Trump is unlikely to testify.

In fact, Trump has not attended the trial at all so far. During opening statements, his attorney, Joe Tacopina, appeared to indicate that the trend would continue, saying that Trump’s testimony would only occur in deposition excerpts. Trump’s witness list consists of only two people, Donald Trump and Dr. Edgar Nace, a psychiatric expert witness.

Trump also is not presenting any exhibits, other than excerpts from depositions. If he does not testify, the only way he will get facts into evidence will be through cross-examination of Ms. Carroll’s witnesses.

Ms. Carroll, on the other hand, will present a number of corroborating witnesses:

• Lisa Birnbaum: The bestselling author will testify that Carroll told her immediately after the incident what Trump had done to her. She will also testify that she told Carroll that she had been “raped.”

• Carol Martin: The first African-American anchor on local news in New York City (for over two decade) will likewise testify that Carroll told her immediately of the rape by Trump. Martin will testify that she told Carroll not to pursue the case, because he had "200 lawyers” and would destroy her.

• Jessica Leeds: Another of Trump’s alleged victims, she will testify that she was sexually assaulted by Donald Trump when she sat next to him on a flight in the 1970s, when he attempted to place his fingers inside of her vagina.

• Natasha Stoynoff: Then a reporter for People magazine, she will testify that Donald Trump sexually assaulted her when she was at Mar-A-Lago in the early 2000s, working on a story.

Carroll is also set to present the infamous Access Hollywood video, in which Donald Trump bragged that he could grab women “by the pussy” without consent, because he was “a star.”

Perhaps even more importantly, Carroll already addressed most of the points that Trump’s attorneys wanted to make on cross-examination.

When I was trained as an AUSA, I was taught to use the BOBS (Bring Out the Bad Stuff) to blunt the effectiveness of cross-examination of my witnesses. A skilled trial attorney will raise every point that they expect the defense to make on cross-examination (1), in order to build credibility with the jury and give the witness the opportunity to explain before facing closed-end (“yes or no”) questions from opposing counsel.

Carroll’s attorney used BOBS masterfully during her testimony today. She explained that:

• She was flirting with Donald Trump prior to the sexual assault.

• The door to the dressing room was open while she was assaulted, but she was trapped by Trump, who weighed at least “100 pounds more” than her.

• She did not scream during the attack—saying Wednesday, “I’m a fighter, not a screamer.”

• She did not write down anything about the attack in her diary. She added that she never puts negative things into her diary.

• She did not file a police report (saying that she was convinced by Carol Martin that she would be “destroyed” by Trump if she did).

• She could not recall the precise date, week, month or year of the attack (although she claimed it likely occurred in late 1995 or early 1996).

• She is a registered Democrat.

• Her book that described the attack had virtually no sales.

These were most of the points that Tacopina made during his opening argument. While I would imagine that he will return to these points during his cross-examination, the jurors may consider these points “old news.”

Another snafu for the Trump team happened just as the trial was starting this morning, when Donald Trump posted two messages on his social media platform, Truth Social, about this case. Both messages used Trump’s favorite phrase—“witch hunt”—to describe the proceedings. He accused Carroll’s lead attorney, Roberta Kaplan, of being a “political operative, financed by a big political donor.” In one message, he wrote, “Does anybody believe that I would take a then almost 60-year-old woman (2) that I didn’t know from the front door of a very crowded department store” and have sex with her. He also attacked the Court for denying his 11th hour attempt to introduce DNA evidence that he had previously refused to provide to the Plaintiff.

When plaintiff’s counsel brought these social media posts to the attention of Judge Lewis Kaplan, the judge made it clear to Trump’s lawyers he was not amused.

He also stated that Trump was creating additional potential liability for himself. He noted that he had specifically forbidden the parties from raising to the jury the issue of third party funding for Carroll’s attorneys. He also said that it appeared Trump was attempting to influence his supporters, or the jury (or both) with his posts.

When Judge Kaplan was later informed that Eric Trump had made additional social media posts about the trial, he warned that there were laws against such actions (likely describing 18 USC Section 1504, which makes it a crime to create a writing designed to influence a juror in a pending trial).

Trump’s attorney stated that he would take action to avoid a repeat of these social media posts (3). Judge Kaplan, in a comment that seemed to indicate that he doubted whether Mr. Tacopina would be successful in getting his client to stop, made it clear that continued statements could have dire consequences for Donald and/or Eric Trump.

But despite all the hoopla, when the jurors left the courtroom today, each of them likely had a strong belief whether the testimony they just had heard from E. Jean Carroll was the truth or a lie. If they believe she told the truth, I doubt there is anything that will come out in the rest of the trial that will cause them to change their minds. If they believe she lied (in graphic detail), I also doubt anything else at trial will cause them to change their minds.

Which is it? Only time will tell.

1: One of the best examples of BOBS was in the movie 8 Mile, where Eminem won the final rap battle by reciting all of the ugly facts that he thought his opponent (Clarence) would use. After that, Clarence had nothing left to say and just gave up.

2: Carroll was, in fact, 52 years old at the time of the alleged rape.

3: Tacopina also cried foul about press accounts that Carroll had conducted two trials in front of “mock juries” and that each time the verdict came out in her favor.

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