Trump Appeals Carroll Verdict Because It Doesn’t Count On A Plane. Or If She Fights You Off. Or …

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(Photo by Drew Angerer/Getty Images)

Yesterday, Donald Trump finally made his case to the Second Circuit as to why the $5 million E. Jean Carroll defamation and sexual assault verdict should be overturned. It’s a Festivus Airing of Grievances that’s short on law and long on bullshit.

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Trump and his lawyers launch into an extended howling rant about Judge Lewis Kaplan, who presided over the trial and was so mean to them. It is almost shockingly disingenuous in its distortion of the trial record. For instance, Trump complains that he was not allowed to introduce DNA evidence from the dress Carroll claims to have worn on the day he assaulted her:

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Having claimed publicly that she possessed President Trump’s DNA from the dress she allegedly wore on the day she does not remember, Plaintiff did not litigate her entitlement to a DNA sample from President Trump and she presented no DNA evidence.

In point of fact, Trump refused to submit to a DNA test in 2019 when Carroll filed her original state suit, and when the New York trial court ordered him to do it in 2020, he had Attorney General Bill Barr remove the case to federal court under the Westfall Act and seek to have it dismissed. Trump refused another request for a DNA sample in February of 2022. He only returned to the DNA issue in February of 2023, after discovery had closed and just two months before the trial, when suddenly he demanded to take such a test, or alternatively to present evidence at trial that Carroll herself had refused to allow him to. Now he argues that the trial court abused its discretion by refusing to let him to wield his own refusal to comply with discovery as a weapon against the plaintiff.

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He plays a similar game with the Access Hollywood tape, which the court originally admitted under Rule 415(a) as “evidence that the party committed any other sexual assault or child molestation.”

Following the trial, the district court denied President Trump’s motion pursuant to Rule 59 for a reduction in the jury’s damages award. SPA.163. In that ruling, apparently for the first time, the court informed the parties that the Access Hollywood recording had been admitted pursuant to Rule 404(b) rather than Rule 415—a ruling Plaintiff does not appear to have sought and which calls into question all of Plaintiff’s propensity arguments based on that evidence. SPA.180 n.20.

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ROLL TAPE!

[T]he Court initially determined that the Access Hollywood tape was admissible on the ground that a jury reasonably could find it was evidence that Mr. Trump “committed any other sexual assault” pursuant to Rule 415. At trial, however, it became clear that reliance on Rule 415 was unnecessary because the video was offered for a purpose other than to show the defendant’s propensity to commit sexual assault. Instead, it was offered – as Ms. Carroll’s counsel argued in rebuttal summation – as “a confession.” Given that Mr. Trump states in the video that he “just start[s] kissing” women without “even wait[ing]” and that a “star” (such as himself) could “grab [women] by the pussy,” it “has the tendency to make [the] fact [of whether he sexually assaulted Ms. Carroll] more or less probable than it would be without the evidence” because one of the women he referred to in the video could have been Ms. Carroll. Fed. R. Evid. 401. See also, e.g., United States v. Cordero, 205 F.3d 1325 (2d Cir. 2000) (unpublished opinion) (“Proof of similar acts may be admitted so long as such evidence is offered ‘for any purpose other than to show a defendant’s criminal propensity.’”) (citation omitted); Woolfolk v. Baldofsky, No. 19-CV-3815(WFK) (ST), 2022 WL 2600132, at *2 (E.D.N.Y. July 8, 2022) (“Evidence of prior crimes, wrongs, or acts, however, may be admissible if offered ‘for any purpose other than to show a defendant’s criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403.’”) (citation omitted). Accordingly, the Court did not include the Access Hollywood tape in its instructions to the jury on the evidence of Mr. Trump’s alleged sexual assaults of other women, and neither party objected to its exclusion from that portion of the charge. [Citations omitted.]

So the tape came in under the lower evidentiary standard of Rule 404, Carroll did not get the Rule 415 jury instruction, no one objected, and now Trump wants the case reversed because after the trial the court pointed that out. Cool!

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The appeal also seeks to relitigate (again!) the admission of evidence by two other Trump accusers, Natasha Stoynoff and Jessica Leeds, because Trump tried but failed to grab them by the … you know:

The district court focused on claimed violations of Florida law, and erroneously found that Stoynoff’s allegations were sufficient to meet the parts of Rule 413(d) that require contact with an individual’s “genitals or anus.” See Fed. R. Evid. 413(d)(2)-(3).7 The district court acknowledged that “kissing [Stoynoff] without her consent . . . would not satisfy any part of Rule 413(d),” and instead focused on Stoynoff’s use of the word “grope” during her deposition. SPA.31-32, SPA.32 n.25, SPA.95 n.4. The court recognized that, absent more, “Rule 413(d) is not that broad” so as to reach alleged “groping” by itself. SPA.32. But the court then strained to bring Stoynoff’s story within the ambit of the “sexual assault” definition by reasoning that the Access Hollywood recording, which should not have been admitted, and testimony from Leeds, which also should not have been admitted, could support an inference that there was an “ultimate goal” of making contact with “Ms. Stoynoff’s most private parts” in an “unoccupied room” at Mar-a-Lago.

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Because it doesn’t count if the butler walks in and you don’t actually manage to get your hand all the way up her skirt.

Also it doesn’t count in an airplane which may or may not have been flying over international waters:

The district court relied on Rule 413(d)(1), which, as pertinent here, applies to “any conduct prohibited by 18 U.S.C. chapter 109A.” The court reasoned that Leeds’ testimony adequately described violations of 18 U.S.C. §§ 2241(a) and 2244(a), which are part of chapter 109A. SPA.27 n.12. The fatal flaw in this reasoning is that those provisions are limited to conduct undertaken in the “special maritime and territorial jurisdiction of the United States,” as defined in 18 U.S.C. § 7, and prisons. Airspace is not part of the “special maritime and territorial jurisdiction” unless the plane is “in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States. . . . .” 18 U.S.C. § 7(5). The district court did not address this requirement, and the record does not support it because Leeds testimony was so vague that she could not even recall her embarkation point.

These arguments are bad, and they should feel bad!

Carroll v. Trump II [SDNY Docket via Court Listener]
Carroll v. Trump II [Second Circuit Docket via Court Listener]

Liz Dye lives in Baltimore where she co-hosts the Opening Arguments podcast and writes the Law and Chaos substack.

Topics

Courts, Crime, Donald Trump, E. Jean Carroll, Government, Lewis Kaplan, Rape