Michael Cohen, Red Finch and the fateful moment Trump lost the jury

I have an unusually high win record with jury trials, partly because I’m chubby and matronly, traits jurors seem to find trustworthy. When smart things come out of my pudgy mouth, it’s a novelty to them, like a stuffed animal come to life, and what juror doesn’t want a warm cuddly friend offering life advice?

About 15 years ago, I tried an injury case before a jury in Chicago. This was before Ozempic; I was even fatter. The plaintiff, my client, was walking her dog on a jogging path when she was hit smack in the eye by a golf ball. The ball had sliced 90 degrees right off the first tee from the adjacent public golf course.

It wasn’t my client’s fault, it wasn’t the golfer’s fault. It was management’s fault, because golf course employees saw so many first tees repeatedly slice right toward the jogging path, they took bets on which ones would hit people. From a damages perspective, it would have cost less for management to erect a net barrier than my client paid in medical bills for her eye, and I suited up in the morning seeing dollar signs.

ALSO READ: How Donald Trump could run for president — and lead the nation — from prison

The trial was going well, I knew jurors were sympathetic. Plaintiff’s injury was permanent: the muscle controlling her iris (pupillary sphincter, you’re welcome) could no longer constrict in response to sunlight or other light, affecting her depth perception. She was credible — she neither overstated nor understated how it felt to rely on a cane to step off a curb — until defense counsel asked her about wearing a self-adjusting contact lens. (It seems there are contact lenses that automatically adjust to differing light. Technology, go figure.)

My client said yes, yes she could wear one of those lenses. But then she hesitated. She reconsidered. She got snarky. She appended her “yes” with, “I could, but why should I have to, I’m not the one who caused this, am I?”

I wanted to kick her. She had had the jury in her palm, then she flicked them away, haughtily. She should have conceded that yes, there were adjustments she’d be willing to make. Yes, she would learn to live with this inconvenience, but she’d do it. She’d adjust. Accidents happen, she was lucky she still had her eye, too bad there wasn’t a net to protect pedestrians.

ALSO READ: Justice delayed is not always justice denied

Instead, she showed defiance. And aggression. If jurors don’t like defiance, they like aggression even less.

With that tone, the jurors shifted. I felt their collective demeanor realign. That snark — that tiny entitled bit of victimhood — caused jurors to look mostly down when I re-directed her. They shifted their eye contact from me to the defense counsel, who slyly sneered my way in recognition of my misfortune.

I could have transmogrified into a talking teddy bear in that moment and it wouldn’t have mattered. Most trial lawyers have experienced this dreaded transition among jurors at some point in their careers: That moment when they know their client has either offended the jury or lost their sympathies, and there’s really no effective way to rehabilitate them.

Red Finch jury shift

For me, during the Trump trial — which I considered more an election fraud case than anything — that shift moment came when Michael Cohen was asked about his dealings with Red Finch, a tech firm.

Defense counsel asked Cohen about stealing from Trump payments intended for Red Finch. The goal: to show jurors that Cohen could not be trusted.

Cohen had admittedly lied in Trump’s service, repeatedly, so that made him a liar, and how could jurors trust a liar to tell the truth? Now Cohen was also admitting to stealing — he paid Red Finch only $20,000 of Trump’s $50,000 payment and pocketed the $30,000. That made him a thief as well as a liar, and wasn’t he really just out to extort President Trump all along?

“You stole it from the Trump Organization?” Trump lawyer Todd Blanche asked about the $30,000, to which Cohen replied, essentially, “yes.”

On redirect, winding up for the pitch — prosecutor Susan Hoffinger asked Cohen: What, exactly, was the purpose of Red Finch, anyway?

Cohen then explained that Red Finch was an online tech company Trump hired to artificially boost Trump’s ranking in an online opinion poll.

The opinion poll wasn’t even marginally important — it was a poll soliciting public opinion about “history’s most notable business leaders.” Trump owed Red Finch the $50,000 fee for fraudulently skewing the results of the poll in his favor. When Cohen told jurors about the arrangement, the curtain was pulled back to reveal a green haze of sleaze.

Trump paying Red Finch $50,000 to lie for him, to present pathetically fraudulent proof that people liked Trump more than they really did, was a business decision no amount of cross examination could wash off.

When the truth about Red Finch came out, there was nothing defense lawyers could do to fix it. Here was Trump, a man so steeped in fraud, so accustomed to lying to the public, that he was paying a tech firm to skew the results of a largely irrelevant opinion poll on his behalf. Having opened the door, defense counsel couldn’t move to strike it from the record, and even if they had, the green sleaze oozing out from under Trump couldn’t be unseen.

I remembered jurors’ faces when my golf ball client said she shouldn’t have to wear a corrective lens. No doubt Trump’s team began to see the same faces.

It was an examination gamble that backfired. Cohen shouldn’t have kept the $30,000, but jurors forgot about Cohen’s deceit when Trump’s deceit upstaged it.

Worse for Todd Blanche, Trump paying Red Finch to fraudulently manipulate public opinion tracked perfectly with Trump paying Cohen, Daniels and the National Enquirer to fraudulently influence the 2016 election.

Whether Trump meant to lie to the Federal Election Commission or not (yes, he meant to), I don’t think there’s any fact, evidence or argument that could have dislodged this proof from jurors’ minds.

In the end, the jury gave Trump 34 reasons to regret his choices.

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake Take, is free.