Trump's attorney fumbled his rape defense -- but he still has a chance to prevail: legal expert

Donald Trump may win his defamation case filed by author E. Jean Carroll in spite of himself.

Carroll's lead attorney Roberta Kaplan delivered a masterful closing argument, according to a new Daily Beast column by former prosecutor Mitchell Epner, but the jury may rule in favor of the former president because the writer and advice columnist was unable to identify the day, date, week, month, or year when Trump allegedly sexually assaulted her at the Bergdorf Goodman department store.

"Kaplan began with a review of Carroll’s testimony, which is the most important factor in the case," Epner wrote. "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.'"

The attorney connected Trump's infamous comments on the "Access Hollywood" recording to his alleged assault on Carroll and then turned the ex-president into a "witness against himself" by showing him repeatedly lying during his deposition and justifying his belief that "stars" should be able to get away with sexual abuse.

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"Then, Kaplan made an unexpected move, declining to ask the jury for a specific amount of damages," Epner wrote. "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.'"

Trump attorney Joe Tacopina used his closing argument to attack Carroll and her case, and Epner credited him with reminding jurors that Carroll could not recall the date and did not mention the attack in her diary at the time, but he said some of his defenses were frivolous and unlikely to persuade a jury -- and managed to anger the judge.

"Near the end of his argument, Tacopina again ran afoul of Judge [Lewis] Kaplan by making impermissible arguments," Epner wrote, listing his arguments that Carroll had based her claims on an episode of "Law & Order: SVU" and trying to tie her case to conservative critic George Conway. "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.'"

Michael Ferrara, another attorney for Carroll, was given an opportunity to present a rebuttal, which he used to mock Tacopina's theories as "stupid" and to again remind jurors of the "Access Hollywood" remarks.

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