Trump Could Still Win Rape Trial Despite Remarkably Bad End

On Monday, the jury heard closing arguments from the attorneys for E. Jean Carroll and former President Donald Trump.

E. Jean Carroll’s attorneys were as close to perfect as I have seen in my 25 years as a trial attorney. Trump’s attorney, Joe Tacopina, however, was remarkably bad, largely reduced to various versions of “Are you kidding me?”

Nevertheless, the jury may rule for Trump, largely because of one glaring weakness in Carroll’s case: her inability to identify the day, date, week, month or year when Trump allegedly raped her in the lingerie department of Bergdorf Goodman.

Roberta Kaplan Delivered a Tour De Force on Behalf of Carroll

Roberta Kaplan, Carroll’s lead attorney, gave lawyers a lesson on how to deliver a closing argument.

Kaplan began with a review of Carroll’s testimony, which is the most important factor in the case. Kaplan acknowledged that Carroll could not provide a date when the sexual assault took place, but then argued that the balance of Carroll’s testimony should lead the jury to believe her. “You saw for yourself, E. Jean Carroll wasn’t hiding anything.”

Kaplan contended that Carroll’s testimony was “credible,” “consistent” and “powerful”. She connected Trump’s infamous words on the Access Hollywood tape to his assault on Carroll, stating that Trump “grabbed her by the pussy, or vagina, I apologize for my language.”

Kaplan then turned to Trump, whom she called “a witness against himself.” She marched the jury through Trump’s deposition testimony, showing how he repeatedly lied and made enormous admissions.

Kaplan argued that Trump’s deposition testimony debunked his repeated out-of-court denial that he raped Carroll by saying that she was “not his type.” However, when Trump was shown a picture of Carroll with Trump and his then-wife Ivana Trump in the 1990s, Trump stated that Carroll was “my wife, Marla” — meaning his second wife, Marla Maples. Kaplan pounced, stating that Trump “only corrected himself when his own lawyer” corrected him. Kaplan continued “[Carroll] was exactly his type. He made up an excuse. He said it was blurry, it is not blurry.”

Kaplan then skewered Trump with the former president’s deposition testimony about the Access Hollywood tape. Trump attempted during his deposition to defend his statement, testifying “historically that’s true with stars”. During the deposition, Kaplan let Trump double-down on this statement, asking, “True with stars that they can grab women by the pussy?” Trump answered, “Well, that’s what — if you look over the last million years, I guess that’s been largely true. Not always, but largely true. Unfortunately or fortunately.”

Today, Kaplan confronted the jury with the horror of Trump’s testimony. “Who would say ‘fortunately’ to describe an act of sexual assault?” Kaplan answered her own question, “He thinks stars like him can get away with it.”

Kaplan also made great use of the fact that Trump did not attend trial, let alone testify. “He didn’t even bother to show up in person.” Because this is a civil, not criminal, trial, the fact that Trump did not testify can be held against him by the jury.

Kaplan rattled off a litany of lies by Trump:

• Trump lied when he contended during his deposition that Carroll had told Anderson Cooper on CNN that “rape was sexy.” Kaplan played the CNN interview to show that Carroll had said the exact opposite, that rape was not sexy, but it was portrayed as sexy on television shows like Game Of Thrones.
• Trump lied when he said he never met Carroll, showing the picture that Trump mistakenly said was Marla Maples.
• Trump lied when he said that he did not shop at Bergdorf Goodman (a store manager testified to seeing Trump shopping in the store during the mid 1990s).
• Trump lied when he said that the photo was blurry.

Kaplan then pointed out that Trump’s only defense was that Carroll and her corroborating witnesses — Carol Martin and Lisa Birnbach — were lying when they testified that Carroll told them about the rape the day that it happened. She noted that Trump was not offering a “middle ground,” did not admit that he was in Bergdorf Goodman, did not claim there was consent and instead claimed that every “sworn detail” was a lie.

Kaplan built to a rhetorical peak, telling the jury that in order to find for Trump, “You have to conclude that Donald Trump, the nonstop liar, is the only person here telling the truth.”

Then, Kaplan made an unexpected move, declining to ask the jury for a specific amount of damages. She did not reference the testimony of Carroll’s expert on defamation that it would cost $2.7 million to buy the amount of publicity that Trump’s statements about Carroll garnered. Instead, she simply concluded by saying: “For E. Jean Carroll, this lawsuit is not about the money.” But rather it was about getting her “name back.”

Joe Tacopina Had Little to Add on Behalf of Trump but Said It With Great Anger

Rather than attempting to parry the points that had been made by Kaplan during her closing argument, Tacopina picked up a rhetorical club and attacked Carroll and the entire case. “Ms. Carroll has abused the system. She brought a case for money, and victimized real rape victims, exploiting their pain and suffering. We cannot let her profit from her abuse of this process. I’m going to pull it all together.”

Tacopina made a few strong points during his closing argument:

• He noted that without a particular date, it was impossible for Trump to provide an alibi for the time of the rape. Tacopina argued that the lack of a date and alibi made it unnecessary for Trump to show up at trial.
• He argued that the jury heard Trump deny the rape in his deposition testimony.
• He noted that Dr. Lebowitz (Carroll’s psychological expert) could not be relied upon to establish that a rape happened, since she admitted that she was not a witness to the events. He called this “garbage in, garbage out.”
• He noted that there was nothing in Carroll’s diary about the attack.
• He drove home to the jury repeatedly that Carroll and Martin used the term “scheme” to describe their discussions after Carroll went public about the rape.

But Tacopina then made arguments that I believe have no chance of persuading any juror who was not already on Trump’s side:

• He attacked Dr. Lebowitz as a “hired gun” for $650/hour. In my experience, attacks on experts for getting paid their usual rate fall flat with jurors.
• He attacked Carroll for not going to the police in 1996 (which might have been an avenue for persuasion) and then tied it to the immigration crisis on the Mexican border in 2023: “There was not a border crisis in the mid 1990s. You know why she didn’t go to the police. Because they would have investigated.”
• He asserted that Carroll only made her accusations against Trump “to sell books.”
• He contended that Carroll’s tears on the witness stand were fake and designed to elicit sympathy.
• He speculated that it could not be true that Birnbach had been told in the mid 1990s that Trump had raped Carroll, but did not share that fact with any of her friends when watching the election results in 2016 in despair, saying “there’s no way that’s truthful testimony.”

Tacopina turned to what he claimed was “lethal” to Carroll’s case — a message from Carol Martin to a friend about Carroll in 2021. The message read:

Tacopina crowed, “Game, set and match,” as if the jury should read the portion of the message referring to “something that hasn’t really happened” as an admission that there never was a rape. As noted below, this argument was addressed (and I believe destroyed) by Carroll’s counsel during rebuttal.

Near the end of his argument, Tacopina again ran afoul of Judge Kaplan by making impermissible arguments:

• Tacopina tried to argue that Carroll made up her entire story based upon an episode of Law & Order: SVU that included a rape at Bergdorf Goodman, but Judge Kaplan sustained an objection and informed the jury that they could not consider the email about the television episode for the truth of the matter, since it was offered for a limited purpose.
• Tacopina tried to tie Carroll’s decision to sue Trump to George Conway, an attorney noted for his opposition to Trump, but Judge Kaplan shut down that argument (as he had ruled before closing he would).
• Tacopina tried to return to the WTF text message, but was again shut down by Judge Kaplan, who ruled that Tacopina had mischaracterized the evidence.

After being humiliated (again) by Judge Kaplan, Tacopina ended his argument as he began it, attacking the very fact that the case has been brought. “This is an absolutely outrageous case. It’s an outrageous case.”

Jane Rosenberg/Reuters

Carroll Rebuttal Erased Most of Tacopina’s Points

After Tacopina sat down, Michael Ferrara stood up to make the rebuttal argument for Carroll. Since the plaintiff has the burden of proof, plaintiff’s counsel gets the last word in closing argument.

Ferrera made masterful use of the opportunity to debunk Tacopina’s arguments. He pointed out that Tacopina’s contention that Carroll’s whole case was a lie cooked up by Carroll, Martin and Birnbach did not make sense. He mocked the theory, saying “So what about the scheme? They are so stupid they need to steal from Law & Order?”

Ferrara also took apart Tacopina’s “game, set and match” text message. Ferrara noted that Tacopina did not ask Martin about the text that he now was attempting to turn into the lynchpin of the case. More importantly, Ferrara pointed out that the “something that hasn’t really happened” was New York passing the law to lift the statute of limitations for sexual assault of an adult, which is what allowed Carroll to sue Trump. And Ferrara was able to point to record evidence that demonstrated that he had found a true thing that helped his client.

Without playing it, Ferrara again turned to the Access Hollywood tape. He noted that “Trump never said it wasn’t true. It was a confession. It was not just locker room talk. I’ve been in locker rooms and I’ve never heard about furniture shopping.” Ferrara twisted the knife, “Trump said, ‘I move on her like a B-I-T-C-H.’Like in Bergdorf’s, shopping. Grabs them by their genitals. That’s not locker room talk, when Donald Trump says it. He did exactly that.”

Ferrara concluded with the fact that Donald Trump had not attended trial and had not testified. In Ferrara’s words, it was not a “he said, she said” case, because there was no “he said”.

Now, It Is All Up to the Jury

On Tuesday, Judge Kaplan will give the jury their final instructions, which will likely take about one hour. After that, the case will be in the hands of the jury.