By KeithDB
Community
Primum non nocere (first, or above all, do no harm) is a Latin expression generally applied to the medical profession. However, I viewed it as equally applicable to the practice of law and often reminded myself of it in my own practice. Trump’s attorneys failed to abide by that primary principle in the cross examination of adult film star Stormy Daniels.
To understand Trump’s defense counsel failure, let me first discuss how they should have treated her testimony before this jury. In a word, they should have treated her testimony as irrelevant. Trump is not charged with having sex with her, or anything to do with the sex with her.
Instead of acting like nothing she said mattered to the case, Trump’s attorneys treated her as if this were a rape case and the central question was whether they had sex. Instead of minimizing that question, they amplified it to super-nova proportions. They actually kept her on the stand for cross examination longer than the prosecution did for direct, which was just stupid.
In attempting to nitpick at supposed inconsistencies (of which they did not really find any) in the sordid details of her story they invited her to go over those sordid details. The defense came across as clumsy, blunt and bullying in trying to get her to directly admit she lied.
Daniels came across as honest and clever in her responses that insisted she was the honest one and Trump the liar. Then the defense left out details supporting Daniels’ testimony that the prosecution exposed on redirect.
The entire defense strategy was grossly misplaced, and clearly directed by Trump. He wanted them to attack her as a blackmailing extortionist liar, so they did. In this, Trump’s counsel followed their client’s wishes rather than sound trial practice.
Here’s how things went today.
-Stormy Daniels resumed testimony under cross examination from Trump’s attorneys.
-Trump’s attorneys continued trying to portray her as trying to extort Trump for money. Daniels testified that is not true, that she went into the process wanting to be paid for telling her story. She claims that in that context the offer to pay her to not tell her story, the offer for a non-disclosure agreement, first came from Trump’s side, from Michael Cohen.
-Daniels testified that she accepted the NDA because they were running out of time to sell the story and because she realized it was actually the best option to protect her family. She realized the NDA “was a perfect solution.”
-Defense plays a recording (recorded by Cohen) of a phone conversation of him and Daniels’ attorney, Keith Davidson. In it Davidson told Cohen, that his client, Stormy Daniels, said about Trump: “He’s going to lose the election. If he loses this election, we lose all fucking leverage. ... Settle this fucking case.” Daniels denied she ever said that, stating, “I never yelled at Keith Davidson on the phone. ... I didn’t do this.”
-Some interesting parsing of words by Daniels regarding the January 2018 statement she released denying any affair with Trump. Trump’s attorney reads the statement, saying: "Rumors that I had received hush money from Donald Trump are completely false." Daniels says, "Correct, because it wasn’t a rumor, it was the truth."
-Daniels claimed she never wanted to make public that she had sex with Trump. "No. Nobody would ever want to publicly say that. I wanted to publicly defend myself.” Trump’s attorney asks “You wanted to make more money, right?” Daniels denies that, saying she didn’t want to make more money and did the 60 Minutes interview for free.
-When Trump’s attorney argues she got a lot of publicity from the 60 Minutes interview, Daniels responds that she did, but that it was “bad publicity.”
-Trump’s attorney points out Daniels got a $800,000 book deal, which she confirms.
-Trump’s attorneys confront Daniels with clubs where she was scheduled to perform, using the photo of her with Trump and pushing their connection for publicity to suggest Daniels was using this to make more money. Daniels angrily responded, "False, I have no control over how the club advertises."
-As Trump’s attorney pushed Daniels about money she made from an NBC documentary, Daniels stated, "You're trying to trick me into saying something that's not entirely true."
-Daniels admits to drinking champagne to celebrate Trump’s indictment. Asked if she celebrated on Twitter by pushing her merchandise, she stated, "I tweeted about him being indicted, yes. People asked how they could support me so I tweeted the link to my store.”
[PERSONAL NOTE: I too celebrated Trump’s indictments. My wife and I, over dinner, toasted “to justice.”]
[HYPOCRISY/HUTZPAH NOTE: Defense is trying to undermine Daniels by saying she tried to make money off Trump’s indictment. Yet Trump exploited his indictments for fundraising with merchandise from t-shirts to the coffee mug featuring his mugshot].
[LEGAL NOTE: By doing this, defense counsel opens the door for Trump to be cross examined about all his promotion of merchandise from his indictment. Another reason he really can’t testify.]
-Defense again with clumsy attempts to directly call Daniels a liar that backfire . . .
Defense Counsel: “You have a lot of experience of making phony stories about sex appear to be real.”
Daniels: "Wow, that’s not how I would put it. The sex in the films is very much real, just like what happened to me in that room."
Defense Counsel: Suggests Daniels made up the story.
Daniels: “If that story were untrue, I would have written it a lot better.”
-Defense continued to just amplify bad facts, to include harping on Daniels’ testimony that she didn’t get dinner.
Defense Counsel: “It was a big deal that you didn't get dinner?””
Daniels: “I went to dinner, and didn't get dinner."
Defense Counsel: “You told Jimmy Kimmel you are very food motivated?”
Daniels: “Yes.”
[NOTE: This is baffling. All defense counsel did is bring more attention to the bad fact that Trump invited her to dinner and there was no dinner, while making Stormy Daniels more relatable to the jury. How many of us are not motivated by food?]
-The insane cross continued as defense counsel suggested that since Daniels is used to seeing naked men in her work, that seeing Trump in his underwear as she came out of the bathroom shouldn’t have shocked her. Daniels responds, "If I came out of my bathroom and saw an older man in his underwear that I wasn't expecting to see there, yeah."
-Trump’s attorney asks, "This wasn’t the first time in your life someone made a pass at you.” Daniels responds, "No, but it is the first time they had a bodyguard standing outside the door.” Daniels also added that Trump was twice her age and size. They kept inviting her to restate the very worst facts for Trump.
-Yet again with the stupid counsel directly asking her if she’s a liar.
Defense Counsel: “You made this all up, right?”
Daniels: “No.”
Later...
Defense Counsel: "Your story has completely changed."
Daniels: "No!" You're trying to make me say that it changed but it hasn't changed.”
-Defense Counsel pressed Daniels about her claim she got lightheaded when she saw Trump in his underwear and “blacked out” during the act. All that accomplished was to invite Daniels to rehash some of the worst stuff and again humanize herself to the jury:
Daniels: “I got lightheaded. I never hit the floor. The worst thing that he did was lie about that night. ... He did not put his hands on me. He did not give me any sort of drugs or alcohol. He did not hold a weapon or threaten me with any sort of item, and I maintain that. My own insecurities in that moment kept me from saying no.”
-In another cross examination blunder, defense allowed Daniels to talk about all of Trump’s other indictments.
Defense Counsel: “So even though you celebrated the indictment you don't know what he's charged with in this case?”
Daniels: “There’s a lot of indictments.” [Note: Journalist Anna Bowers described this response as “Daniels deadpans.”]
-Final question on cross again sought to compel Daniels to confess to being a liar. “You never had an affair with President Trump but realized you could earn money and you’ve been doing that for 12 years?” Prosecution objected, the judge sustained.
-The prosecution on redirect pointed to half truths told by the defense. For example, defense counsel showed a text exchange between the National Enquirer editor and Daniels’ publicist where the National Enquirer texted, “I thought she denounced it previously.” What defense did not show the jury was that the the publicist texted back, “She never did.”
-On redirect, Daniels stated she never testified to the grand jury and thus had nothing to do with the charges in this case. The Prosecutor notes that Defense Counsel suggested to the jury that Daniels was responsible for the indictment.
-Defense tried a brief re-cross suggesting that Daniels enjoyed being a clever poster on Twitter, going back and forth with people on these issues. It again backfired as Daniels answered, "I was defending myself. I never attack anybody first. Same with Mr. Trump. I didn’t say anything negative about him until he said it about me.”
-With that, the defense finally gave up their failed efforts to outsmart the adult film actress and Stormy Daniels stepped down from the stand.
The cross examination of Daniels was 30 minutes longer than her direct examination. Further, it did more harm than good. I’ll say again, at some point defense counsel’s best course is to cut your losses, get a bad witness off the stand, out of the room, and hopefully out of the jury’s mind. Trump’s counsel went way past that point and served his defense poorly.
A cartoon by Jeff Danziger.
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