Judge Rebukes Another Trump Lawyer, Forces Apology To Jury

The first week of Trump’s first criminal trial is in the books. (I don’t count the first week of motions and jury selection) Although not a disaster, it didn’t go well for Team Trump. In fact things went pretty badly. I use the term Team Trump for a reason. I’m sure you read and heard all about lead lawyer Todd Blanche’s blistering burn from judge Merchan, the you’re losing all credibility with the court made during a motions argument.  That was of course bad. Both for Blanche personally and for Trump’s defense as a whole. However a SECOND Trump lawyer got rebuked by the judge for his actions during the defense cross of David Pecker, the prosecution’s next witness.

Let’s break this down. Legal pundits were “shocked”, “stunned”, “astonished” and who knows what else adjectives regarding judge Merchan’s comment to Blanche. To a person they seemed to have not only never seen (probably true) or even heard of such a thing ever happening, anywhere in the land. I think that second part is hyperbole but no matter. The contention it’s a rare thing for a judge to be that harsh is credible. So is another point they made about it, which is that so early in the proceedings losing “good faith” with the court (the judge) is a bad thing. That’s hard to argue with.

Judges are required to make all sorts of judgement calls (no pun intended) during a trial and if a lawyer/side has blown their credibility it’s difficult to take their arguments made on this or that point of contention as being made in good faith. Blanche might have just blundered along to the point where the judge lost it due to lack of trial experience as a defense lawyer. He was a quite good prosecutor, and has solid experience after switching sides but has only conducted a single trial before now as a defense lawyer. Or, he might have just been following Trump’s orders and saying things he did and conducting himself the way he did. No matter. He, and it seems now by extension Team Trump blew it with the judge.

There was one saving grace to all that.  The jury wasn’t present to see judge Merchan administer the smackdown to Blanche. However as the week went on a moment came where the that “loss of credibility” was felt. As reported by Salon, Trump lawyer Emil Bove (that’s him with Trump in the title pic) got his very own smackdown from the judge. More importantly, while the rebuke took place after the jury had left the courtroom, part of correcting the wrong Bove committed while cross examining Pecker involved the judge drafting and reading a jury instruction first thing the next morning explaining what Bove did wrong. And making Bove himself apologize to the jury for misleading them!

I won’t again (well, at least this time) show the short clip of Chris Farley getting whacked in the head and exclaiming “that’s gonna leave a mark” but this incident is in fact going to do just that with the jury. So, what the hell happened? you are probably asking. Well, I wrote yesterday evening about how David Pecker was every bit as bad a witness for Trump as I’d predicted (a couple of weeks ago) he would be. Lot’s of damning information, and Pecker is said to have come across as being truthful/credible. Worst of all, something I didn’t mention last night was he was quite clear on the issue of why Trump wanted his help. Embarrassment for Melania or his family wasn’t Trump’s concern. Never once came up in numerous discussions in fact. No, it was Pecker testified all about the campaign.

Still, one of the good things about our legal system is that any witness who testifies can be cross-examined by the other side. Sometimes a good cross-examination reveals things weren’t all the witness made them out to be. Personally, having followed the case I thought Pecker did even more damage to Trump than I thought he might. Trump might have refused to believe Pecker would so coldly and calculatingly bury him. His thinking might well have been: We’ve been pals for decades! I know he signed a deal with the feds but sitting there looking at ME at the defense table he’ll recant. He will protect me. Or provide SOME cover.  Trump I think really believed that and worse (for him) at least partially convinced his lawyers of it.

By the second day of Pecker’s testimony Trump’s lawyers at least knew it was bad for their client. His direct testimony wrapped up mid afternoon (well after 3pm) on the second day and the defense probably thought the judge would adjourn for the day. No such luck, it was a short break followed by “Your witness” and the defense had to begin cross examination. All things considered, they actually did manage to do some of the kind of muddying the waters a defense lawyer/team tries to do to create reasonable doubt. Down the road (during closing arguments) the prosecution can blow up one theme, but on another the defense did itself in:

During cross examination, Trump attorney Emil Bove pressed the witness on why he was now testifying that Hope Hicks — then-director of the Trump campaign’s communications team — was “in and out” of that Trump Tower meeting when he had previously told federal investigators that she was not there. Bove then handed Pecker a document that the attorney said would refresh his memory.

Here’s the problem. That piece of paper turned out to be a prop. Maybe Trump’s lawyers got so used to Trump waving pages clipped together claiming they are news storied about “legal scholars” saying how ridiculous all this was they think they can get away with the same thing. The problem is, in courtrooms if you’re going to present something to a witness like a photo, document etc. you have to let the other side see it too. Turns out that document Bove showed to Pecker to “refresh his memory” didn’t say what Bove told the court, and the jury it actually did. Uh Oh.

After the jury had been excused for the day everyone had a little “chat” about what had gone down. The defense of course objected to said discussion but the judge wasn’t having it:

“If there wasn’t anything in that document, it’s misleading,” Merchan said, as HuffPost reported. “I’m going to ask you to be very careful with that.”

When Bove sought to defend himself, Merchan cut him off. “Mr. Bove, are you missing my point?”

Yes judge, Bove was missing your point. He’s not Trump and can’t get away with the kind of stunts Trump pulls with the media with his props. Just like Trump has realized that you aren’t judge Cannon (or after Thursday SCOTUS) and that he’s not going to put up with the kind of crap you get away with elsewhere.  And remember what I said earlier about credibility and that Team Trump spent its account down to zero balance already.

CNN legal analyst Norm Eissen summed it up well saying that moment undid whatever good may have been accomplished by the defense.  He complimented the defense for getting off to a strong start with their cross-examination. “But then, they made a mistake.” Gee Norm, ya think?  As Salon put it:

Instead of demonstrating that Pecker, 72, is unreliable, Bove undermined his own credibility before the jury by introducing a document that did not contain the information that the defense counsel claimed. “It seemed to be an ‘a-ha’ movement,” Eisen commented. But, now, “All that good is going to be undone because the judge is going to tell the jury that it was not fair.”

The Salon article goes on to say (quoting legal analyst Harry Litman):

“Not as bad as ‘you’re losing all credibility,’ but not great,” Litman commented on social media. “Bove will start tomorrow [with] a real embarrassment before [the] jury, as judge tells them Bove basically misled them in characterizing [the] document he was supposedly using to ‘refresh [Pecker’s] recollection.’ A bad way to start the day and… undoes the solid if not very damaging work he did.”

And yes, the next morning the judge told the jury what had happened, why it shouldn’t have happened and issued an instruction to correct things. And then Bove had to take his turn:

The next morning, with jurors once again in the room, Trump’s defense attorney was indeed forced to begin by saying “sorry” for the document “confusion” and the suggestion that Pecker flatly told investigators that Hicks was not at the 2015 meeting, CNN reported.

“I wanted to apologize and move on from that,” Bove said Friday.

I’m surprised I didn’t hear discussion on this. I’d love to hear how pundits inside the courtroom would characterize Bove’s tone/demeanor during  his apology. If he didn’t make a good show of at least appearing to be genuinely sorry (and remember who’s giving him his marching orders) it’s going to register with the jury even more forcefully than I think it will under the best possible circumstanced for Trump. Think about it. Not even a full week into the trial and the judge is telling them the defense tried to run a game on them. And the lawyer who pulled the stunt apologizes. Juries are usually good at sorting things like this out and all of them had to know even if he was genuinely sorry Bove didn’t want to have to offer an apology.  So anything that hinted at “smart-ass”, or “Okay, the judges says I have to say I’m sorry so I’m sorry. So there!” isn’t going to go over well with them.

Trump might like it but the jury won’t. At least Blanche took his spanking outside the jury’s presence. Bove, and Team Trump has taken one in front of them. For in effect trying to slip a LIE past them. Who knows how many times Team Trump will run afoul of the judge, or come off looking like sleazy strip mall lawyers before this is over?

Well, as I see it after one week where Trump and his lawyers started out standing in a hole, all they’ve done is dug it deeper. To which I say keep digging. Please. I’ll even order some shovels from RWNJ asshole Home Depot for you to dig with.