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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Donald Trump has said he could shoot someone in the middle of 5th Avenue and his voters would still support him, but we now know he can't sexually assault someone in a department store on 5th Avenue and not be held accountable by a jury. Let's talk about the unanimous jury verdict of liable for sexual assault and defamation, but not rape, and the damages of $2 million to E. Jean Carroll for the sexual assault back in the mid-'90s, $3 million for the defamation, which was much more recent.

Back with us one more time is former sex crimes prosecutor, Jane Manning, who is now director of the Women's Equal Justice Project, which advocates for sexual assault victims and works for systemic change. Jane, welcome back to WNYC.

Jane Manning: Good morning, Brian.

Brian Lehrer: Can you help people understand the finding of liable for sexual assault but not rape as E. Jean Carroll had alleged? The jury actually had four choices I see; rape, sexual assault, forcible touching, or none of the above. What happened here?

Jane Manning: The headline from this, Brian, is that this is a resounding victory for E. Jean Carroll delivered by a jury who found her thoroughly believable. The issue of the jury finding Donald Trump not liable for the accusation of rape I think has everything to do with the fact that when E. Jean Carroll testified about the assault, there was a little bit of ambiguity in her testimony. She said, "I'm not sure whether I was fully penetrated or partly penetrated," but she was very clear about everything else that Donald Trump did during the assault when he violated her manually.

I think that that was the reason why the jury found him not liable for rape but liable for sexual abuse. I think the thinking was not, "We don't believe E. Jean Carroll." I think the thinking was, "Well, she wasn't quite clear on that, so we are not sure about that, but she was very clear about the sexual abuse and we are convinced of that." [crosstalk]

Brian Lehrer: Go ahead.

Jane Manning: Just to say, in every way, this verdict reflects that they believed E. Jean Carroll. You don't come back in three hours awarding someone a $5 million verdict unless the jury found her thoroughly believable.

Brian Lehrer: In a case like this, the damages awarded is also obviously a big finding here. $2 million for the sexual assault, $3 million for the defamation, and it breaks down into even narrow categories than those, and we'll go through some of that. I don't know how one puts a dollar figure on sexual assault in the first place, so maybe you can explain how that works, but are you shocked that they would find that being defamed by Trump, which is him lying about her in public, just words, if we want to look at it that way, was worth more than being sexually assaulted physically by him?

Jane Manning: If you look at the verdict sheet, the defamation damages were broken down into two categories. One category was the cost of doing reputational repair and the other was other general damages associated with being defamed. For one of those categories, the jury awarded $1.7 million. For the other, they awarded $1 million. Part of that, I think, had to do with the fact that the plaintiff's legal team was able to put on very specific evidence from a damages expert about what the cost would be of a reputation repair project, and so they had very specific numbers to attach to the damages in those categories.

I will say though, compared with the $1.7 million and the $1 million for reputational repair and other defamation costs, they still awarded her more for the rate, which was $2 million. I think that you are right. It's very hard to quantify what the price would be for someone to try to compensate for the damages she suffered from being raped, but I think what the jury said here is that of the three categories where they were invited to award damages, the highest number was the one attached to the rape. To the sexual abuse, rather, which is what they found him liable for, sexual abuse.

Brian Lehrer: Yes, sexual assault [crosstalk]. Listeners, your comments and questions are welcome about these verdicts, the E. Jean Carroll versus Donald Trump sexual assault and defamation findings. 212-433-WNYC, 212-433-9692. The jury was made up of six men and three women, and their decision was unanimous. I want to correct something that a guest said on the show the other day. The guest was under the misimpression that in civil court, the jury only has to have a majority vote to declare a finding, but really, the jury needed to be unanimous, and it was. Do I have it right now that in a state civil lawsuit, it only needs to be majority of the jury, but in a federal civil suit, which this was, the standard is a unanimous jury?

Jane Manning: That is correct. In a civil federal trial, it needs to be unanimous jury unless the parties agree otherwise, which they did not do in this case, and so E. Jean Carroll's legal team was required to convince the jury unanimously to deliver a verdict in her favor.

Brian Lehrer: This is a tangent, but do you know why it's only a majority required under New York law for civil lawsuits at the state level? If I sue you for $5 million in damages, I only needed to convince five jurors out of nine of your liability. That tips things way toward people who sue, doesn't it?

Jane Manning: I don't think it's five out of nine. I think it's a higher ratio than that. I'm not an expert in civil jury rules, but the basic thinking in New York is that we want the highest levels of protection attached to criminal process because the most is at stake for the defendant, whereas there's a somewhat lesser penalty attached for defendants in civil cases. I don't believe five out of nine would be sufficient. I'm sorry, I don't know the exact number for you, but that's the thinking behind the difference in those two rules.

Brian Lehrer: All right. That's a legal footnote here. This jury was unanimous. That's the important thing. Back to the case. Some commentators are saying the most damaging witness for Donald Trump was Donald Trump. Even though he did not take the stand in his own defense, he did have to sit for a recorded deposition before the trial, and E. Jean Carroll was able to use things that he said against him.

I'm going to play a few examples. Here's an exchange between Trump and Caroll's lawyer relevant to Trump's claim that he wouldn't sexually assault E. Jean Carroll because she isn't his type. They showed Trump a picture of himself with Carol from back around when the assault took place and he mistakes her for his wife at the time, Marla Ann Maples. Listen.

Donald Trump: It's Marla.

Roberta Kaplan: You said Marla is in this photo?

Donald Trump: That's Marla. Yes. That's my wife.

Roberta Kaplan: Which woman are you pointing to?

Donald Trump: Here.

Speaker 5: [unintelligible 00:07:58] Carroll.

Donald Trump: Oh, is that-- Oh, okay.

Roberta Kaplan: The person you just pointed to was E. Jean Carroll.

Donald Trump: Oh, I see.

Brian Lehrer: Wow. That was a very bad moment for Donald Trump under oath. He then went on to say, "Oh, the photo is blurry." Do you think that mattered to the verdict?

Jane Manning: I do think it mattered. I want to just start by pointing out how truly despicable it is for Donald Trump to have directed the discourse in this way that a woman is now in the position of trying to prove that she was attractive enough to be sexually assaulted by Donald Trump. How depraved and perverse it is that his answer to the question, "Did you sexually assault this woman?" His answer was not, "Oh, I would never sexually assault someone." His answer is, "I wouldn't sexually assault her. She's not my type." I really just want to note how disgusting and despicable it is that those are the terms of the dialogue as Donald Trump has tried to set them.

That said, if you're going to make that the terms of the debate, then you really shouldn't mix up the alleged victim of your sexual abuse with a woman that you married and in fact left your first wife for so much was that second wife your type. That was indeed a bad moment for Donald Trump in his deposition, and I do have to say it was enormously satisfying for those of us who got to witness it on tape.

Brian Lehrer: To go even a little further down the depravity rabbit hole, he also quipped rudely to Caroll's attorney in this exchange that she's not his type either. We're going to play that right now.

Donald Trump: You wouldn't be a choice of mine either, to be honest with you. I hope you're not insulted. I would not, under any circumstances, have any interest in you. I'm honest when I say it. She, I would not have any interest in.

Brian Lehrer: The jury heard that. It's so arrogant and obnoxious, in addition to being irrelevant. Do you think Trump didn't realize the tape deposition would be admissible as evidence?

Jane Manning: I have no idea if he realized it or not. I suspect his lawyers were smart enough to explain that to him. I think this is another instance of his mentality, that there is no end to what he can get away with. He can troll the female attorney right there on video and no one will hold him accountable for it. The jury acted otherwise.

Brian Lehrer: Indeed.

Jane Manning: I can only imagine how galling it was to particularly the three women sitting on that jury to be watching a videotape where Trump cannot restrain himself from insulting the female attorney who is there doing her job as a professional, feels the need to tell her that she's not his type. How outraging that must have been, hopefully to all the jurors, but I have to imagine there was a special disgust among the three women on the jury.

Brian Lehrer: Yes. An expression of misogyny that you would think goes to the judgment of his character. I have a theory that Trump in his defense was rolling the dice that he could get just one person on the jury since it did have to be unanimous to have enough doubt to identify like most of Republican America apparently does with the idea that he was being railroaded and other traditional values, cisgender hetero guys who think like him or victims too in woke America.

To avoid being declared libel, maybe he was putting on his belligerent, aggrieved misogynist offense more than any defense and hoping to get a hung jury because maybe there was just one person like that in the jury room who would be more on his side because he commented on the lawyer's looks. Do you think that's far-fetched?

Jane Manning: I think there's a lot to that actually. Trump has grounded his political success in the idea that he doesn't need to win over a majority, he just needs to win over his base. I think his legal team was very much counting on trying for a hung jury in his civil lawsuit. I'm sure they explained that to Donald Trump as part of their strategy. My guess is that was a strategy that was very familiar to him from his own political career. I think that's a really good guess, Brian, that that's exactly what he was going for among the jurors was just looking for that sympathetic sliver that would prevent the jury from being able to deliver a verdict against him.

Brian Lehrer: Here's one more from Trump's deposition. They use the Access Hollywood tape in this case as most of our listeners know, the infamous boasting by Trump behind the scenes to the Access Hollywood host Billy Bush that Trump just starts kissing women he's attracted to and grabbing their genitals and they let him do it because he's a star. His defense was that he was only joking about that, it shouldn't be taken as evidence of a propensity to actually behave like that, but in his deposition, he acknowledged that he believed the premise. Listen.

Donald Trump: Well, historically, that's true with stars.

Roberta Kaplan: It's true with stars that they can grab women by the [bleep]?

Donald Trump: That's what-- If you look over the last million years, I guess that's been largely true. Not always, but largely true, unfortunately or fortunately.

Roberta Kaplan: You consider yourself to be a star?

Donald Trump: I think you can say that. Yes.

Brian Lehrer: Jane, the lawyer there established, and she was quick on her feet, that Trump believes stars can get away with sexual assault and that he is a star. Basically, was Trump asking the jury to believe that he had the restraint to not act on the sexual privilege that he asserted he had?

Jane Manning: If that's the message he was trying for, he undermined that message pretty badly when he looked at the attorney and said, "Unfortunately or fortunately," to the idea that stars can get away with grabbing women's bodies. We talked once before, Brian, about the idea that Donald Trump isn't just embracing the role of men who are accused of sexual assault. He embraces the role of men who commit sexual assault.

What other possible interpretation could there be to a witness who testifies, yes, for a long time men have been able to get away with doing this to women, pauses, and then methodically adds "unfortunately or fortunately"? It is so clear what he is doing in that video. It is so clear that he is rubbing it in Robbie Kaplan's face that he believes he can get away with this, and he is daring the jury to do anything other than let him get away with it.

Well, the jury took him up on it, and they decided in this instance, he could not get away with it. I think that was one of the most damning and outrageous moments of his deposition. I think it may have been one of the moments that damaged him the most. He was boasting right there in the jury's face, "I can do this and get away with it." They decided to prove it otherwise.

Brian Lehrer: We've talked about the sexual assault finding. When we come back from a short break, we'll talk about the defamation finding, which is also really interesting on a number of levels. I think it even connects to the Fox News settlement with Dominion the other week. We'll talk about that, and listeners, we'll take some of your phone calls for former sex crimes prosecutor, Jane Manning. 212-433-WNYC. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC. As we talk about the E. Jean Carroll versus Donald Trump lawsuit verdict, the jury found in effect that Trump is a liar and the Access Hollywood tape was true, and it found in effect when he called E. Jean Carroll a liar, he was lying. That's the defamation part. Our guest is Jane Manning, former sex crimes prosecutor and director of the Women's Equal Justice Project. We'll take a few phone calls shortly at 212-433-WNYC. Let's talk more about the defamation finding. Remind us what exact statements they were evaluating.

Jane Manning: They were evaluating statements that Donald Trump made in the fall of 2022 when he repeated his earlier claims that E. Jean Carroll was perpetrating a hoax, that he never met her, and that she was not his type. Those three statements all went together and the plaintiff's mission was to prove all three of them to be false in the course of the defamation part of the trial.

Brian Lehrer: Would you say, and I teased this idea before the break, that this connects with the Fox News big cash settlement with Dominion voting machines recently? It's two defamation court proceedings in very short order that resulted in major damages based on two different sets of Donald Trump's lies about others; his lies about rigged election machines that Fox then amplified and his lies about E. Jean Carroll. Do you see the cases as related or adding up to something in any way?

Jane Manning: I do see them as related. Both cases sent the message that the high levels of protection that we give to speech in our legal arena are not unlimited. Both in the Fox case and in the E. Jean Carroll case, the plaintiffs had a higher burden than most civil plaintiffs face. In E. Jean Carroll's case, the cause of action that related to sexual abuse only had to be proven by a preponderance of the evidence more likely than not, but the parts of the complaint that had to do with defamation had to be proven by clear and convincing evidence.

She had to prove that the statement was false and that it was made with actual malice by clear and convincing evidence. That's a higher burden, and the jury found that she did meet that higher burden. I think that the results in both of these cases show that although we give an extra level of protection to speech in our legal system, that protection does not give free rein for people to lie without consequences when those lies cause harm to real people.

Brian Lehrer: Do we conclude from this trial that a politician can be held legally accountable for defamation of an individual more easily than for lies he tells about political issues?

Jane Manning: Oh, I think that's absolutely right because it's the harm to the individual that gives rise to a cause of action like the defamation claim that E. Jean Carroll brought against Donald Trump. Yes, I think that defaming an individual and harming that individual with their lies is absolutely going to be more actionable than lying about political issues. E. Jean Carroll was able to show the real harm that she had suffered as a result of the defamation, the hate emails that she got, the threats, the way it changed the way people looked at her in her professional life, and even among people who knew her.

She testified in sometimes painful detail about the way people's opinions changed her and some people treated her differently. This, especially, mattered in a career like that of E. Jean Carroll, who was a public figure, who had an advice column, and whose job depended on the fact that people held her in a position of trust. When she was accused by Donald Trump of being a liar and a perpetrator of a hoax, there were fewer people who wrote to her column and who placed that trust in her.

There were real quantifiable damages to a real person caused by Donald Trump and proven in a court of law. That's part of the reason why the defamation claim was upheld by the jury.

Brian Lehrer: Angela in Detroit, you're on WNYC. Hi, Angela. Thanks for calling in.

Angela: Hi, Brian. I still have one foot in New York. I listen every day to you.

Brian Lehrer: [chuckles] Thank you.

Angela: I just wanted to point out, I know actually, I haven't heard anybody say this quite this way. Your guest almost said it. By saying something like, "She's not my type," isn't that just almost an admission that he would do it if she were? I'm just outraged by the whole-- that he could say that and nobody is saying, well, by default, you're implying that, "If she were my type, I might have done that." That's all. I just wanted to point that out.

Brian Lehrer: Thank you, Angela. Yes, that is what you were saying before, Jane, right?

Jane Manning: Absolutely. That's part of what makes it such a shocking statement. At no time did he say, "Sexual assault? I would never sexually assault someone." He's saying, "No, I wouldn't sexually assault her. She's not attractive enough to me." Angela's absolutely right. It's a shocking thing to say and a window into the way Donald Trump thinks about women and treats women.

Brian Lehrer: In a larger sense, Jane, for you who works on this for a living, women who've been sexually assaulted or raped or forcibly touched, any of those categories, did this case set any precedent, in your opinion, that will help victims of sexual assault in not high-profile cases?

Jane Manning: I think this case was a very important milestone. It demonstrated that it is possible for a powerful sexual abuser to be held accountable in court. I think it's very important to other survivors. I think it's an encouraging verdict for other survivors. I also think it's important to the feminist movement as a whole. This verdict was in every way made possible by the work of generations of feminist activists, the 1970s feminists who worked for rape shield laws so that the trial didn't become all about E. Jean Carroll's unrelated personal life, the feminists in the 1990s who worked to pass the Violence Against Women Act, which is the reason why E. Jean Carroll was able to bring in two other women to testify about similar crimes.

It was a federal rule that was passed as part of the Violence Against Women Act. The Adult Survivors Act, which was passed because of a group of survivors; Alison Turkos, Drew Dixon, Marissa Hoechstetter, Evelyn Yang, who worked tirelessly for the past several years in Albany to get the Adult Survivors Act passed to allow a cause of action like this to be brought years after the fact during this one year window that's open. There are many women who worked tirelessly to make it legally possible for E. Jean Carroll's case to go to court and to succeed.

The victory that E. Jean Carroll saw yesterday is a victory for all of those feminists. That said, it is also very important to understand that some of the factors, many of the factors that were in E. Jean Carroll's favor and that allowed this successful lawsuit are not available to many or most survivors. We need to recognize that as well because as encouraging as yesterday's verdict is, we have an awful lot of work left to do if we want other survivors to be able to get justice in court.

Just a couple of examples. Civil lawsuits are prohibitively expensive for most survivors, especially if you don't have a rich defendant with a deep pocket so that a lawyer would take the case on contingency. In most cases, my survivors who seek justice in civil court are turned away empty-handed because the costs are prohibitive. Also in civil court, we need to do more work on making sure that rape shield laws are enacted and enforced for civil plaintiffs because some states don't have rape shield laws for civil lawsuits.

In other states, they're enforced very unevenly, especially in the discovery process where plaintiffs are still subjected, often to very demeaning lines of questioning during civil discovery about their irrelevant personal histories. Looking at the criminal justice system, we still have, including right here in New York City, sex crimes units that are badly understaffed, badly undertrained, and not capable of doing the kinds of investigations and collecting the kinds of corroborating evidence that survivors need to be able to succeed in criminal court.

One issue in particular that was really spotlighted in E. Jean Carroll's case was the fact that she was permitted to call these two other women, Natasha Stoynoff and Jessica Leeds, to testify about experiencing similar sexual abuse by Donald Trump against them. That happened. That was permitted in E. Jean Carroll's trial only because the trial was happening in federal court where this rule passed as part of the Violence Against Women Act is applicable.

In state courts, most states, whether you're talking about civil or criminal trials, do not permit this kind of evidence, except in rare circumstances. In New York, it's very, very rare circumstances. The thinking behind this is that the jury will be prejudiced because they'll just be so angry at the defendant for a different sexual assault, that they'll be running away with their resentment, and they'll just convict, regardless of the evidence, in the case that's on trial.

Donald Trump's trial is yet another example of why this reasoning is just not true because look what the jury did here. They did not just run away with their prejudice and convict or find Donald Trump liable on all counts. They looked at the verdict sheet, they thought about E. Jean Carroll's testimony, what aspects of that testimony were clear and unequivocal, and what aspects of that testimony did contain a little bit of ambiguity, and they passed out that verdict sheet according to what they heard in E. Jean Carroll's testimony.

That's not a jury that's acting on overwhelming prejudice. That's a jury that listened to the evidence, took it seriously, and delivered a verdict accordingly. It is time for a rethinking of this rule in states that don't allow similar crimes evidence. Because what we all learned during the #MeToo movement is that when you hear that an offender or an accused offender has a pattern of behavior, it's relevant.

That pattern is relevant and it matters, but in court, when a survivor tries to hold an abuser accountable, evidence of a pattern to his behavior is still, in the vast majority of sexual assault cases, completely concealed from the jury and the survivor is going it alone. It's time to rethink those rules and it's time to allow some evidence of similar crimes to be heard by juries. They've shown that they can handle it.

Brian Lehrer: One more call. Richard, a lawyer in Brooklyn, you're on WNYC. Hi, Richard.

Richard: Good morning. I had a few points which I will try to make quickly. One is, it has been such a pleasure listening to Jane Manning's legal analysis in the coverage of this trial. It's just been fantastic.

Jane Manning: Thank you.

Richard: You're welcome. I think it was a really interesting aspect of E. Jean Carroll's testimony that she is of the generation of women that were taught to keep silent. I think that really registered with the jury. It was so credible. My last point is that I think psychologically, the fact that the plaintiff, Ms. Carroll, prevailed in this case, that this case can work as an icebreaker for other cases against Trump, both civil cases as well as criminal prosecutions. Psychologically, that he no longer is Teflon Don, that the veil can be pierced.

Brian Lehrer: Richard, thank you very much, and good lawyer skills there, making three different points in a very succinct period of time. Jane, you made a fan out of a colleague in the profession there. What about his last point that this could serve as an icebreaker psychologically to other juries and grand juries now considering charges against Trump?

Jane Manning: I hope that's true. Richard, thank you for your kind words. I will just say Richard is very much not alone. There are so many men who were rooting for E. Jean Carroll, who were rooting for Donald Trump to be held accountable because they do not treat women this way and do not have any patience with men who treat women this way. Thank you, Richard, for your support for E. Jean. To Richard's observation that this might be an icebreaker for other cases, yes, I do hope so.

This has shown the world that Donald Trump can be held accountable. It is so satisfying that that lesson was delivered by a woman who was kept silent for so many years. This is the first of many civil and criminal cases going forward against Donald Trump, and I do hope there's an important message of encouragement for other people who are looking to hold Donald Trump accountable. I think and hope, it's a message of encouragement for other survivors who have not yet seen justice in their cases.

Two things, one, don't stop looking for justice in your case, and number two, don't stop fighting for a justice system that gives you a fair level playing field, the way I think that E. Jean Carroll was given a fair trial. Most survivors don't get that. We can keep working to change it so that more survivors do.

Brian Lehrer: Last thing, you're here as a former prosecutor and an advocate, not a political analyst, but the reaction from Trump on social media, as I'm sure you've seen, include posts like, "What else can you expect from a Trump-hating Clinton-appointed judge who went out of his way to make sure that the result was as negative as blah, blah, blah, blah, blah?" From what I read, the large majority of Republican politicians are not denouncing Trump's behavior despite the verdict. They're remaining cautiously silent, I guess, to see what the base does.

Politically, as he runs for president again, do you have any opinion about whether this hurts or maybe helps him? The Access Hollywood tape maybe helped him when it came out a month before the election in 2016, I don't know, or neither, because these kinds of judgments of Trump, one way or another, are already so baked in.

Jane Manning: I think people who are die-hard Trump supporters will probably not have their minds changed by this verdict, but a lot of people who voted for Donald Trump in 2016 were not die-hard Trump supporters. His victory in 2016 was so narrow. I think there will be people who may have-- I know a man who voted for Donald Trump in 2016, but when the E. Jean Carroll case was about to go to trial, he texted me saying, "There is no doubt that he did this."

He texted me again after she testified saying, "I believe her completely." I think there will be voters who paid attention to this trial, believed E. Jean Carroll, were repulsed, not only by Donald Trump's conduct that the jury found him liable for, but by his disgraceful comments about it in his deposition. I think there will be minds changed by this trial and by its result.

Brian Lehrer: Former sex crimes prosecutor, Jane Manning, who is now director of the Women's Equal Justice Project, which advocates for sexual assault victims and assists them, and works for a systemic change. Jane, as we wrap up, I just want to second what Richard from Brooklyn said and say, you've done so much. You've given so much to our listeners by coming on three times during the course of this trial and helping us take a deep dive and understand it so much better. Thank you very, very much.

Jane Manning: Brian, you care about this issue. You ask thoughtful great questions, and you're a wonderful conversation partner in this important topic, and I thank you.

 

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