May 9, 2024, 5:02 p.m. ET2 minutes ago2 minutes ago
Jonah BromwichReporting from inside the courthouse
After insisting to the defense that he barred certain details “to protect your client,” Justice Merchan...says, “I disagree with your narrative that there’s any new account here.” He is citing specific issues with the defense's arguments, saying that instead of denying the falsification of business records, they denied the sex with Daniels. “That in my mind allows the people to do what they can to rehabilitate her and to corroborate her story. Your motion for a mistrial is denied,” he concludes.
[Oy vey. Rehabilitation is allowed. You can ask the same question on re-direct that you did on direct when the defense has crossed the wit. on the point. BUT THE WITNESS REPEATING THE SAME TESTIMONY IS NOT CORROBORATION.]
May 9, 2024, 4:58 p.m. ET7 minutes ago7 minutes ago
Jonah BromwichReporting from inside the courthouse
And now, Justice Merchan again criticizes the defense for not objecting to testimony that was later used in a motion for mistrial. He says he agrees that the question about whether Trump wore a condom should not have been asked or answered. But he says he does not know “why on earth” Susan Necheles, the defense lawyer, didn’t object to that question.
[This has bothered me every time that I have read it. I'll try to tease my bother out: 1) Merchan rules at some point, "You can't elicit that testimony." 2) the prosecution elicits that testimony. 3) defense objections are sustained. At one point Merchan said on Tuesday that he himself cut off the questioning. Merchan was hard on the prosecution that day (Tuesday?). So if, as a judge, you know that the prosecution has gone someplace that you prohibited them to go, like e.g. the condom, what do you do? You can wait for a defense objection. You can intervene yourself. Both of which Merchan did. But if you do the latter, you're second-guessing the defense. Maybe it's part of their strategy to not object. But Merchan is not crediting Necheles with strategic lawyering, he is criticizing her as an incompetent. A judge is not judging the lawyers. He is judging the fairness of the trial that the DEFENDANT has a fundamental right to.]
May 9, 2024, 4:59 p.m. ET6 minutes ago6 minutes ago
Jonah BromwichReporting from inside the courthouse
This could not be going much worse for the defense. Not only is Merchan signaling that he will almost certainly reject their mistrial motion, but he’s dressing down their lawyering in front of their client, the former president.
May 9, 2024, 5:02 p.m. ET3 minutes ago3 minutes ago
Alan FeuerReporting from inside the courthouse
He’s even criticizing specific lines of their cross-examination, chiding Necheles in particular for leaning into the most awkward and uncomfortable parts of Stormy Daniels’s testimony with her questions in a way that he says he simply didn’t understand.
[Maggie Haberman has blogged previously that Justice Merchan is harder on Necheles than on the other defense attorneys.]
May 9, 2024, 4:55 p.m. ET9 minutes ago9 minutes ago
Jonah BromwichReporting from inside the courthouse
Justice Merchan begins to address the mistrial motion. He says that after ruling against the defense's request for a mistrial on Tuesday, he went back and reviewed many of his past decisions, studying them in his chambers. He says that he came away satisfied. His voice is trembling a bit as he interrupts himself. He says at every trial, the evidence comes in a different way. Why is he saying that now, he asks? Because in going back to opening statements, he sees that the defense “denied that there was ever a sexual encounter between Stormy Daniels and the defendant.”
[See annotation to Brom's 4:58 post. "opening statements": That's simply wrong as I annotated Feuer's 4:56 pm blog post.]
May 9, 2024, 4:56 p.m. ET7 minutes ago7 minutes ago
Jonah BromwichReporting from inside the courthouse
The defense opened the door to Daniels’s testimony, Merchan is saying. He seems to be suggesting that what the prosecution did in response was perfectly appropriate.
May 9, 2024, 4:56 p.m. ET7 minutes ago7 minutes ago
Alan FeuerReporting from inside the courthouse
Merchan is effectively saying here that Trump’s maximalist position of utterly denying the sexual encounter with Daniels had taken place clearly opened the door for the prosecution to introduce specific evidence that it did occur.
[Let me think that through as I type: Trump: I deny sex. I'm charged with business records fraud for paying off Stormy for sex. I also deny business records fraud for paying off Stormy for sex. I was being extorted and paid Stormy off to protect my wife and family. Stormy testifies and said we had sex. Now, what is the defense supposed to do? Not cross her? Limit their cross to "You don't know anything about business records?" "No. How would I know?" PERHAPS. Stormy said she received hush money from Cohen/Schiller/Trump, whomever. Trump's lawyers claim it wasn't hush money. Michael Cohen did it on his own. It was response to an extortion.
[Well, that's not a good defense. There's an impressive paper trail. But what was the defense to do when Stormy testified that they fucked and the client says they didn't? I think any lawyer, any judge, knows that you have to cross her on the sex. But...they didn't have to. "My client's not charged with fucking her, your Honor. He's charged with paying her her off. It doesn't matter if the sex is true."
[Merchan: Trump denied sex, ergo opened door to proof of sex. Did Trump deny sex? He hasn't testified yet. Did the government introduce tweets, etc. where Trump said, "I didn't have sex with her"? Well, yes. He has tweeting that she was a liar, repeatedly; that's denying the sex. Is the defense opening, Blanche saying that Trump didn't have sex evidence? NO. The jury is specifically instructed that what the lawyers say is not evidence.
[This is a tough position for the defense to be in.]
May 9, 2024, 4:58 p.m. ET5 minutes ago5 minutes ago
Jonah BromwichReporting from inside the courthouse
A judge also concerns himself with being overturned on appeals, which can be very embarrassing, especially in a high-stakes trial such as this. By saying he went back and reviewed his own decision, Merchan sends a signal to appeals judges who might review his work here, that he took that first motion for a mistrial very, very seriously.
[Merchan is doing the internal corroboration bit, now. "I went back and reviewed everything." "I KNOW I was right." You can review until the fucking cows come home. It doesn't matter if you were wrong. That doesn't help Merchan on appeal.]
May 9, 2024, 4:50 p.m. ET53 minutes ago53 minutes ago
Jonah BromwichReporting from inside the courthouse
Joshua Steinglass said that the details elicited about the sex act were important because they corroborated other parts of Stormy Daniels’s story. For instance, at their dinner before having sex, according to Daniels, Trump asked her about safe-sex practices in the porn industry. Prosecutors later asked Daniels whether Trump used a condom. Steinglass argues that fewer than 10 questions actually elicited salacious details.
[That's the same bizarro world legal argument as below. This is INTERNAL corroboration. There is no EXTERNAL evidence that Daniels and Trump had sex. Daniels didn't save a semen sample, wasn't secretly recording it. There is NO external corroboration that I am aware of. If the prosecution calls, e.g. Keith Schiller, Trump told him to go up to Stormy to proposition her for Trump, that would be something, and something powerful.]
