Today, Joe Tacopina, lead counsel for Donald Trump, cross-examined E. Jean Carroll after she testified that Donald Trump raped her in the 1990s.
During his moment in the spotlight, Tacopina was derisive, derogatory and dismissive. This may have been the most tone-deaf cross-examination in a rape trial since To Kill A Mockingbird.
The fireworks started from the first moment, when Tacopina started, “Good morning, Ms. Carroll.” She did not respond in kind, but instead remained silent—which was appropriate, as there was not question pending. Mr. Tacopina, visibly perturbed, raised his voice and repeated, “Good morning, Ms. Carroll!” At that point, she finally responded, “Good morning.”
It went downhill from there.
When Tacopina insinuated that Ms. Carroll only had a “story” that she was raped by Donald Trump, she gave no ground.
Q: Now, that is the book in which you included the story about your supposedly being raped by Donald Trump in a Bergdorf Goodman changing room, right?
A: Not supposedly. I was raped.
When Mr. Tacopina again tried to make her retreat, she stood firm.
Q: That’s your version, right, Ms. Carroll, that you were raped.
A: Those are the facts.
Tacopina then belittled Ms. Carroll’s testimony that she did not come forward before Trump’s election because she was carrying for her dying mother.
Q: So yesterday when you testified that you didn’t want to come forward at this point, even though he was running for president and you claimed he had raped you, you didn’t want to do that because one of the reasons you said was your mother was dying, correct?
A: She was on her deathbed. My sisters and brother and I had joined her at the end of September to spend our last weeks together.
Q: And ultimately your mother unfortunately passed away in October of 2016, right?
. . .
Q: And that’s a month before the election took place, more or less, correct?
Q: So why didn’t you come out with the story after your mother passed away before he was elected?
A: I was in deep, incredible, painful mourning.
Q: How old was your mother when she passed?
A: 97. She would have been 98.
Q: This had nothing to do with the fact that the book wasn’t ready yet, did it, Ms. Carroll, the reason you didn’t come out at that point?
A: I hadn’t conceived of writing a book at that point.
The jurors almost certainly heard that exchange as Tacopina stating that Ms. Carroll’s claim to be “in deep, incredible, painful mourning” had to be a lie, because no one could be surprised by the death of a 97 year old woman. If Tacopina did not already have a juror on his side, that question would almost certainly turn that juror against him.
Tacopina’s ‘Gotcha’ Moment Fell Flat
After belittling Ms. Carroll’s grief, Tacopina then went in for the kill, using a text exchange between Carroll and Carol Martin (who is set to testify on behalf of Ms. Carroll) to show that they had a “scheme” to get Trump.
Carroll explained that in the text, “As soon as we are both well enough to scheme, we must do our patriotic duty again,” the word “scheme” was “a typical word that Carol and I use, carrying no connotations of evil. It’s just a word that we use.”
Tacopina lost control of this line of questioning when he asked how Ms. Carroll could fail to remember that email, but could remember her conversation with Ms. Martin 28 years earlier.
Carroll responded, devastatingly: “I told Carol Martin what Trump did to me in the dressing room. Those are facts that I could never forget. This is an e-mail, among probably hundreds of e-mails between Carol and I, that I have no recollection of, but I suspect it’s something funny.”
Tacopina later attacked Carroll’s trustworthiness based upon her testimony that she laughed, but did not scream, when Donald Trump started to rape her. It did not go well for him.
Q: In fact, in response to this supposedly serious situation that you viewed as a fight, where you got physically hurt, it’s your story that you not only didn’t scream out, but you started laughing?
A: I did not scream. I started laughing. That is right. I don’t think I started laughing. I think I was laughing going into the dressing room, and I think I laughed pretty consistently after the kiss to absolutely throw cold water on anything he thought was about to happen. Laughing is a very good—I use the word weapon—to calm a man down if he has any erotic intention.
Undeterred, Tacopina doubled down on his attack.
Q: When you’re fighting and being sexually assaulted and raped, because you are not a screamer, as you describe it, you wouldn’t scream?
A: I’m not a screamer. You can’t beat up on me for not screaming.
Finally, Tacopina stated flatly that Carroll did not have a “story” for why she did not scream until after she spoke with a psychiatrist, Dr. Lebowitz (who will provide expert testimony in the case).
Carroll then exploded with indignation: “I wasn’t coming up with a story. It’s usually—I would say more than usually—under discussion when a woman is raped and she doesn’t scream. It’s usually discussed, why didn’t she scream, E. Jean? Why didn’t you scream? It’s what a woman—you better have a good excuse why you didn’t scream. Because if you didn’t scream, you weren’t raped. I’m telling you, he raped me, whether I screamed or not.”
It was as if Mr. Tacopina had learned nothing from the public response to The Accused, which won five Oscars in 1988.
Tacopina, with nothing to back his questions up, also expressed incredulity at Ms. Carroll’s testimony that she had parried Trump’s suggestion that she try on the lingerie by suggesting that he, instead, try it on. The exchange did not go as he expected:
A: I had written a similar scene on Saturday Night Live and got nominated for an Emmy for the very thing of a man getting dressed in front of a mirror. The idea was, to me, hilarious.
Q: You wrote a scene for Saturday Night Live about a man putting on lingerie over a suit?
A: About a man getting dressed in the bathroom, and he was wearing his underwear.
Q: Over his suit?
A: No. It was just a man in his bathroom falling in love with himself in front of the mirror.
Q: To you that’s a similar scene as Donald Trump, in the middle of Bergdorf Goodman, with his suit on, trying on a piece of women’s lingerie?
A: That’s how my mind works. That’s how comedy is born. You take two opposite things, you put them together, and it makes a new scene. That’s where comedy comes from.
Q: Did that ever air on Saturday Night Live?
Q: When was that?
A; 1987, William Shatner played the role.
As a trial attorney, I am astonished that Mr. Tacopina went down this road, without knowing that Ms. Carroll was, in fact, nominated for an Emmy for writing that sketch.
As I wrote yesterday, I do not know whether the jurors believed Carroll’s direct testimony that she was raped by Trump. Based on my 25+ years as a trial attorney, including service as an Assistant United States Attorney who focused on sex crimes, I am confident that any juror who did not already believe that Ms. Carroll lied in her direct testimony would not have been persuaded by any of the cross-examination that she was a liar.
In fact, it appeared that Tacopina—who is a very capable trial attorney—had an agenda that valued being mean to Ms. Carroll over undercutting her credibility. I would not be surprised if that was a direct order from Donald Trump.