Trump's Plan To Wow Carroll Jurors With His Manly Charms Backfired Bigly
They hate you. They really, really hate you.
On Friday afternoon, a jury in Manhattan awarded E. Jean Carroll a whopping $83 million in damages in her second defamation case against Donald Trump. After a week of courtroom shenanigans by the former president and his lawyers, it took the panel less than three hours to deliver a verdict which dwarfed the $5 million penalty from the first trial.
Those two things are probably related.
That is, if Trump had stayed away like he did in the first trial, and if he was still represented by lawyers able to conduct themselves appropriately in the courtroom, it’s unlikely that the second judgment would be so comparatively punishing.
Two Trials, Two Verdicts
We’ve already discussed the serpentine history of this case and how it got bifurcated. But relevantly, the first trial involved both defamation and sexual abuse. In that case, the jury awarded Carroll $2 million for sexual battery, $2.7 million for defamation, and a mere $300,000 in punitive damages.
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Because of the prior verdict and the doctrine of collateral estoppel, Trump’s liability was not at issue in the second trial. But neither was sexual battery, which constituted 40 percent of the original compensatory award. And yet the second jury awarded Carroll $18.3 million in compensatory damages for identical defamatory statements, along with $65 million in punitives.
The purpose of punitive damages is to deter future bad conduct, and, as Trump’s constant stream of invective and denials demonstrated, he was not at all deterred by the original $300,000 penalty. Indeed, he all but dared the jurors to whack him, repeatedly defaming Carroll on social media during the trial itself, as her lawyers pointed out in real time. But at least some of that 21,667% increase was likely due to Trump showing up in court to wow the jury with his putative charms.
In the first case, Trump was represented by Joseph Tacopina, an experienced litigator, who made damn sure to keep his client out of the courtroom. At one point, Trump threatened publicly to “go back and confront this woman.”
This put Tacopina in the very unpleasant position of having to contradict his client in open court. But there was no way on God’s green earth that he was going to risk Trump explaining to the jurors that “fortunately or unfortunately” stars like him have been able to get away with sexual assault for millennia, or spontaneously announcing that he did not want to sleep with the plaintiff’s lawyer — both of which the former president did in deposition. And while Trump’s allies have now turned on Tacopina, he did successfully limit the damages in the first trial to a relatively puny $5 million.
Choose Your Own Adventure Litigation
We’ll probably never know whether Trump’s disrespectful behavior goosed the second punitive award. Jury consultant Richard Matthews, who will be on the Law and Chaos podcast next week, cautions that “nobody has any idea whatsoever what any juror thought of the defendant's behavior during the trial, and less so what role their reaction played in the dollar verdict.”
Matthews rejects the theory that Trump’s antics cost him, suggesting that the panel “did a pretty workmanlike job of sticking to the evidence and made a straightforward, modest ruling.”
“The compensatory damages were right in line with what the testimony was, and then the punitive damages were between three and four times the compensatories — that is not an extreme punitive damages figure at all,” he said.
But whatever the real effect of Trump’s contemptuous behavior, his allies have been working to spin the losses as arising from too little Trump, rather than too much.
“He should have testified on his own behalf. He should have looked the jury in the eye and said ‘This is bull’ and told that story or whatever story he wanted to tell,” former Fox host Bill O’Reilly blustered to former CNN host Chris Cuomo on News Nation back in May. “To tell it on television and not show up to the trial, it put himself in jeopardy.”
Soon Trump was publicly blaming Tacopina for his loss in the first case.
“Disgraceful Trial—Very unfair,” he whined on Truth Social. “I was asked by my lawyer not to attend— ‘It was beneath me, and they have no case.’ That was not good advice.”
By the second trial, Trump had dispatched Tacopina in favor of his sparklemagic lawyer Alina Habba, who recently bragged on air that she’d rather be pretty than smart because “I can fake being smart.”
Last January, Habba scored a million dollars in sanctions for Trump by filing an idiotic RICO suit against Hillary Clinton, James Comey, and half of DC. Nothing in Habba’s background suggested that she was the ideal lawyer for this case, and indeed she spent the past three years royally pissing off Judge Kaplan. But with Tacopina on the outs, Habba was back in the driver’s seat for Carroll I.
This go round, Trump showed up for several days of the trial, where he snorted and scoffed and even stormed out during opposing counsel’s closing arguments — a profound breach of decorum conveying utter disrespect for the proceedings. But instead of reining him in, Habba and her partner Mike Madaio augmented his theatrics. For a longer discussion of the courtroom batshittery unleashed by Trump’s lawyers, check out the (premiere!) Law and Chaos podcast with former prosecutor Mitchell Epner. But suffice it to say that the pair made themselves maximally odious to both the judge and the jurors.
Habba even made good on her promise to put Trump on the witness stand. But the instant Trump began to argue that he’d denied the allegations to protect his family and the country, Judge Kaplan cut him off and instructed the jury to disregard the comment. In the event, Trump’s entire testimony took less than five minutes and served only to demonstrate once again that $300,000 or even $5 million — essentially couch cushion money for a billionaire — was not going to be a sufficient deterrent.
Tired of Winning
A $63 million damage award might lead a rational observer to conclude that allowing Trump to behave like a braying jackass in court was a spectacularly terrible decision. So naturally, MAGAworld is doing cartwheels to suggest the opposite.
“If the first jury had been unable to find that Trump mistreated Carroll -- even by the low standard of proof required -- then the defamation campaign would have fallen apart,” tweeted the Washington Examiner’s Byron York.
“I think Trump made a grievous error by not testifying in the first trial,” he continued. “Since this was a 25 year-old accusation that could not be proved one way or the other, his personal denial would have been important.”
Because counterfactuals are fun, and anyway, it’s not like anyone’s going to prove you wrong, right?
The theory seems to be that if Trump had just testified in the first trial and repeated the invective he was spewing on social media, the jurors would have been so dazzled by his manly presence that they would have rejected Carroll’s account of being sexually assaulted. If only they’d known that she named her cat “Vagina,” they’d have understood that this was a woman who could not possibly have been sexually assaulted.
And if the jury hadn’t found Trump liable in the first trial, he wouldn’t have been barred from denying the allegations in the second trial, and then none of this would have happened.
Andrew Napolitano, yet another former Fox personality, agreed.
"The jury believed her in large measure because Donald Trump, in my view, did not testify in that case,” he said on the eve of the trial, adding, “I think if the President shows up and testifies, the amount of money that he will owe her will go down. But he's got more important things to do because he's in New Hampshire."
Trump’s lawyer Alina Habba echoed the sentiment in a bizarre press conference where she sneered at the “ridiculous jury” and claimed that Judge Kaplan violated the First Amendment by forbidding Trump to defame Carroll in open court.
It’s Never Trump’s Fault
It’s already an article of faith in Trumpland that he lost the second trial because he wasn’t allowed to speak his piece to the jurors. If Trump’s supporters don’t turn on Tacopina, it’s only because they refuse to acknowledge the verdict at all. They cannot conceive of a world where Trump’s boorish insults and flagrant mendacity would disgust normal Americans and make them want to punish him.
It must be that the those Americans simply didn’t get enough of Trump, and were tricked by the judge. To admit otherwise would be to concede that Trump could not “stand in the middle of Fifth Avenue and shoot somebody, and … not lose any voters, okay?” And if you admit that Trump’s boundless faith in his own inherent charisma is misplaced, then perhaps you’d have to admit that more Americans voted for the boring old geezer instead of Hair Furor.
Luckily his fans have been practicing their magical thing by pretending that a twice-divorced serial adulterer found liable for sexual assault and fraud is the second coming of Jesus and Abraham Lincoln, so blaming Tacopina won’t be such a heavy lift.
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