Defamation trial jury has likely already made up its mind — one way or another: former prosecutor

Attorneys for writer E. Jean Carroll have delivered opening remarks in the civil rape trial against former President Donald Trump — and, wrote former prosecutor Mitchell Epner for The Daily Beast, that is probably the whole ballgame. Whether or not the jury finds the former president liable, they have probably already made their decision based on the testimony they have already heard.

Carroll alleges that Trump raped her in a department store dressing room in the late 1990s. In addition to suing him for battery, she is also making a defamation claim, saying that the former president's denials of his actions have cost her employment opportunities and reputation.

"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," wrote Epner. "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."

By contrast, Epner pointed out, Carroll has a long string of witnesses to go, including multiple people she told about the assault at the time, and two other women who allege they were assaulted by Trump, to corroborate her account of his modus operandi — along with the infamous "Access Hollywood" tape in which Trump bragged he can get away with groping women because he's famous.

Another reason the jury probably already has all the facts to make up its mind, said Epner, is that Carroll got out in front of everything Trump's attorney was planning to say in his defense — with her own lawyer acknowledging she flirted with him first, that she didn't scream during the attack, that she couldn't recall the exact date, that she is a registered Democrat, and that she wrote a book that described the incident (which sold very poorly). Tacopina tried to bring up some of these points himself in his opening statement, but, Epner wrote, "the jurors may consider these points 'old news'" when he tries to bring them up again on cross-examination.

"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," concluded Epner. "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."

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