“No legal basis”: Experts explain Trump’s failed bid for mistrial in E. Jean Carroll lawsuit

U.S. District Judge Lewis Kaplan on Monday denied Donald Trump’s attorney’s request for a mistrial in E. Jean Carroll’s civil case accusing the former president of rape and defamation.

Trump attorney Joe Tacopina filed a letter in Manhattan federal court on Monday morning, arguing that a mistrial should be granted “based upon pervasive unfair and prejudicial rulings by the Court.”

Tacopina accused Kaplan of being biased against Trump.

“Here, despite the fact trial testimony has been underway for only two days, the proceedings are already replete with numerous examples of Defendant’s unfair treatment by the Court, most of which has been witnessed by the Jury,” the letter said.

Carroll, who sued the former president for battery and defamation, alleges that Trump damaged her reputation by calling her a liar and repeatedly denying her accusations that he raped her in a Bergdorf Goodman department store dressing room in either 1995 or 1996.

“The judge has done nothing more than manage the trial, as all judges do,” former U.S. Attorney Barb McQuade, a law professor at the University of Michigan, told Salon. “Judges must decide whether to sustain or overrule objections and often tell lawyers to move along with repetitive questioning. This motion is necessary to preserve any issues for appeal.”

So far, Tacopina has questioned the validity of Carroll’s claims while cross-examining her and suggested that she only came forward decades after the alleged incident because of her strong dislike for Trump’s politics and her desire to promote her book. 

Tacopina said that Kaplan’s rulings “manifests a deeper leaning towards one party over another”, including in comments where the judge “openly expresses favoritism”.

“There is no legal basis to grant a mistrial merely because Trump disagrees with Judge Kaplan’s evidentiary rulings regarding admission of third party evidence or because Judge Kaplan sustained objections to a number of argumentative and hectoring questions by Trump’s lawyer,” former federal prosecutor Faith Gay told Salon. 

In the 18-page letter, Tacopina argued that the judge did not let him question Carroll about why she did not seek security camera footage of the alleged rape, and why she did not inform the police about the sexual assault. If a mistrial isn’t granted, the court should correct the record and give Trump’s team more leeway to cross-examine Carroll and other plaintiff witnesses, Tacopina argued in the letter.

“The immediate positive effect for Trump of his failed mistrial motion is to make Judge Kaplan even more careful to appear fair-minded during cross-examination of Ms. Carroll,” said Gay, the founding partner of Selendy Gay Elsberg. “To that end, Trump requested ‘alternative relief’ for ‘more leeway in cross-examination.’  Trump has – in effect – already received that relief this morning with Judge Kaplan directing Ms. Carroll to answer a line of questions to which she appeared to prefer not to answer.”

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Carroll is suing Trump under a New York law that grants victims of sexual abuse a one-time opportunity to sue their attackers even if the assault occurred decades earlier.

During her cross-examination on Monday, Tacopina implied that Carroll was not emotionally affected by the alleged assault while questioning her and showed receipts indicating that Carroll spent more than $13,000 at the department store between 2001 and 2018.

Carroll testified that she continued to shop at Bergdorf Goodman and made it clear that  “Bergdorf’s is not a place that I’m afraid to enter.”

Tacopina also examined several columns written by Carroll, in which she advised her readers to report cases of sexual abuse and harassment to the police, CNN reported. 

Carroll acknowledged these recommendations but explained why she didn’t report the alleged assault to the police herself. 

“I would never call the police for something I was ashamed of,” Carroll said. “I was ashamed of what happen. I thought it was my fault, I would never, never, never go to the police ever.”