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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We'll back now to the lawsuit entering its second and perhaps final week in Manhattan courtroom today in which advice columnist E. Jean Carroll accuses Donald Trump of raping her in the 1990s in a dressing room at the Bergdorf Goodman department store. She accuses him of defamation for the way he responded to her allegation. One way to look at this case is that Trump's Access Hollywood tape is now being put to a jury for verification.

Now, if you recall, and we're not even going to play it again, this was the behind-the-scenes recording of Trump and Access Hollywood host Billy Bush, in which Trump said, "I'm automatically attracted to beautiful women, I just start kissing them. I don't even wait. When you're a star, they let you do it. You can do anything. Grab them by the P word, you can do anything." You remember the Access Hollywood tape. That surfaced just a month before the 2016 election, you'll recall. He got elected anyway, of course.

As a result of the tape, a number of women including E. Jean Carroll went public for the first time with their allegations of varying degrees of sexual assault by Trump. The Access Hollywood tape is being used as evidence in this case, and in a minute, we'll play clips from the New York Times interview of one of the other women who came forward at that time, Jessica Leeds, who is now expected to be a witness in this case.

We'll also review some of the testimony by Carroll herself, including under a tough cross-examination from last week. We'll talk more about what's at stake beyond the fate of Carroll and Trump in this one case, all with Jane Manning, Director of the Women's Equal Justice Project, which helps sexual and domestic abuse survivors navigate the legal system and works for systemic reforms. She is also a former sex crimes prosecutor. Jane, thanks for continuing to follow this with us. Welcome back to WNYC.

Jane Manning: Thank you, Brian.

Brian Lehrer: In general, and you and I spoke after the opening arguments, now there's been testimony including direct questioning and then tough cross-examination of E. Jean Carroll herself. Donald Trump as a defendant is not expected to take the stand. Where do you think this case stands at the moment?

Jane Manning: The most important part of the trial is the part that has just happened, the testimony of the main witness, the complaining witness, or in civil case, the plaintiff. The other parts of the trial matter, but for the most part, rape cases are not won or lost with a brilliant closing argument. They are won or lost when the complaining witness takes the witness stand and has the opportunity to testify to the jury and have her testimony assessed for credibility by the jury.

Brian Lehrer: Pieces of the transcript of the cross-examination have been published. There are no cameras or microphones in the courtroom in New York City, or anywhere in New York State. Of course, this is being reported on. I'm going to read a couple of excerpts here and get your take. One of the things was Trump's lawyer, Joseph Tacopina questioning the fact that, let's say-- and I'm sorry, I'm picking through some of this right now, why she came up with that story at that time. He asked, "Why didn't you come out with the story after your mother passed away?" Because her mother was dying and did die right around that same time, October 2016.

He's questioning her on why she didn't come out with the story right away after the Access Hollywood tape. She says, "I was in deep, incredible painful mourning." He asked, "How old was your mother when she passed?" Answer, "97, she would have been 98." Question, "This had nothing to do with the fact that the book wasn't ready, did it, Miss Carroll? The reason you didn't come out at that point." She wrote, "I hadn't conceived of writing a book at that point." Her accusation was made public in her book, which was published in 2019. Three years later, the defense attorney for Trump thought he had a got you point on that. How did it sound to you?

Jane Manning: Good luck to a defense attorney trying to break a witness who says that she didn't come forward at a particular time because her mother had just died and she was in deep grieving. I don't think he scored too many points there. For me, the biggest question about Jean Carroll's testimony, both on direct and on cross, when I was anticipating that testimony, my biggest question was, would E. Jean Carroll's authentic personality be able to emerge in the course of this trial? Because I felt that if it did, it would head off a lot of the avenues of cross-examination that Joe Tacopina might otherwise have attempted.

For example, Jean Carroll has a very distinctive personality. That personality is characterized by humor and optimism and also by a toughness and a self-sufficiency. Those qualities tie together so many aspects of her account. The way the whole incident started, it was this lark in a department store that she thought was going to be a great funny story. When Trump abruptly changed the dynamic and attacked her and shoved her against the wall, her first defense mechanism was laughter. She said, "Sometimes if you can laugh at a man, you can get him to back off." That was the first thing she tried to defend herself.

When that didn't work, then that quality of toughness and self-sufficiency kicked in because she says then it became a fight. When she realized that this was a serious sexual assault, she said, "Then it became a fight." She describes how she fought back to defend herself. That humor and optimism also tie through some of the aspects of her testimony that might have otherwise been grounds for cross. For example, she says that she called her friend Lisa Birnbaum afterwards. Lisa had to tell her to stop laughing, to listen to what she had to say.

I want to come back to that in a minute. Her answer to Lisa was, "This was 15 minutes of my life, I'm going to put it behind me." If you understand the importance of that humor and optimism as lifelong coping mechanisms and the things that make life good, it makes sense of so much of her testimony, including the idea that her first instinct was to put this behind her and move on. On the witness stand, so then how did it go? My question was, will her personality come through? On the witness stand, I think it was abundantly clear that her personality did come through in that way.

Several times on direct and cross-examination, she showed her wittiness, her readiness to see the humor in something. At one point, Joseph Tacopina said to her, "Is it fair to say that when Donald Trump was elected president, you were almost in disbelief?" She looked back at him and said, "Not almost." She described a Saturday Night Live skit that she had once written and was nominated for an Emmy for. At several points in her testimony, she had jurors chuckling. I think that there were many moments at which her personality emerged on the stand in a way that would help the jurors understand why she reacted as she did.

That said, her testimony was not all humor and optimism, she described the pain of these, the physical pain of the assault. I want to let people know there's an interview that she did with Lawrence O'Donnell very soon after initially coming forward. She talks about the assault and she said, "It hurt, and it was a fight." When she said those words, you see a look of pain flash across her face. When she described those moments to the jury during the trial, she went into even more detail about just the physical reality of the assault.

It became quite graphic in a way that was a moment, I think, of great bravery for her. It was also a moment for the jury to watch her in real-time and to see her face when recounting the worst aspects of the assault. By all accounts, the jury was riveted on E. Jean Carroll. Their eyes didn't leave her face during her testimony. She also described--

Brian Lehrer: Go ahead, no, finish. Go ahead. I'm sorry.

Jane Manning: She also described her self-blame and just a couple of other aspects of the pain of this experience. She also described to the jury that she has not had a romantic relationship since then. That's a remarkable piece of testimony for a couple of reasons. One reason is that that's an objective fact that is disprovable. As a lawyer, what that means to me is, if that testimony was false, it would have opened the door for the defense to bring in aspects of E. Jean Carroll's personal life to rebut that testimony.

The jury, of course, may not be thinking about the rules of evidence the way I am, but they still understand that's an objective fact about her life that is capable of being proven or disproven. For a woman with this kind of gregarious, vivacious, fun-loving gal to describe to the jury, "I have not been able to have a romantic relationship with a man in over 25 years," that's an extraordinary piece of testimony that I think was going to have a real impact on anyone listening to it.

There was this combination of E. Jean Carroll's upbeat personality, but then these moments when the pain of the sexual assault and the long-term impact it had on her came through in this very vivid way that I think her testimony was effective, and I think she did a lot to prove her case in the eyes of that jury, would be my guess.

Brian Lehrer: We're already seeing reporting of her this morning under cross-examination saying, "I am a member of the silent generation. Women like me were taught and trained to keep our chins up and to not complain." That was on not calling the police. You described or you referenced that moment when she went on Lawrence O'Donnell's show on MSNBC and described the incident with Trump as a fight. That came up in the cross-examination. I'll read a little bit more of the transcript from the cross-examination questioning and her responses because I think this was key, but you'll tell me.

The lawyer for Trump, Tacopina, says, "In response to this supposedly serious situation that you viewed as a fight where you got physically hurt, it's your story that not only didn't you scream out, but you started laughing." Then E. Jean Carroll replies, "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."

Jane, you referred to that before. Then it continued. Tacopina asked, "When you were fighting and being sexually assaulted and raped, because you're not a screamer, as you describe it, you wouldn't scream?" She says, "I'm not a screamer. You can't beat me up for not screaming." Then Tacopina continues on this line of questioning and says that she doesn't have a story for why she didn't scream at the time. Then she says, "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." You want to comment on that exchange?

Jane Manning: It's so powerful the way she describes her identity as a member of a generation that was taught to be silent, to not draw attention to yourself, who grew up in an era when a woman who was sexually assaulted was often seen as being to blame even if you believed that she was sexually assaulted. It was still, "What did she do to invite it on herself?" In those frantic split seconds in a dressing room, when she had to decide what was her defense mechanism going to be, she tried laughing at him to throw cold water on him. That didn't work.

She knew there was no one around because she had just come through a deserted dressing room and so screaming might not have seemed like a great way to bring help to herself. Also, again, in those split seconds, her instinct might have been that calling to attention to herself being caught in a tough spot in a dressing room with a man might bring more opprobrium and shame on her than help and support. Again, what she has emphasized so many times is how quickly this happened. It turned in a split second from being a funny, fun lark to being an attack.

She describes a moment of real confusion and she says, "What I thought was happening was not what was happening," and so her immediate instinctive reaction was to physically defend herself. She said, "I was tall, I was athletic, and I was determined to fight him off." Here's something that's important to remember. Not every rape victim physically fights. In fact, many don't. A victim who's ambushed in an attack that she's not suspecting has to make a quick decision what's most likely to keep me safe, what's most likely to get me out of this. Many victims decide not to fight back.

What I want to point out is that often victims are faulted for that. "You didn't fight? You didn't struggle?" The law in New York at one time said that if you didn't fight, it couldn't even be considered a rape under the law. Thankfully, that's no longer the law. The point is if E. Jean Carroll's story had been a different one and she screamed but she didn't fight, then the cross-examination would be, "Why didn't you fight?" She knows that. Instinctively, she knows that. I think that's part of what underlies the anger that you hear in her response. "You can't beat up on me for not screaming."

This rape occurred in a time when women were damned if you do and damned if you don't, no matter how you respond to a sexual assault. She responded by fighting. She did fight him off. I think it's important to remember. This was a completed sexual assault in the legal sense that there was penetration, but it was not a completed sexual assault in the sense that the actual rape only went on for a very short period of time before she was able to get her knee up, shove him away, and get herself out of that dressing room. She wants the jury to know, "Don't judge me for the thing I didn't do. Think about the whole story, how fast I had to make a decision, and what I did do to defend myself."

Brian Lehrer: Now we've talked about some of what did happen in this trial last week, let's turn to one of the things that's going to happen this week, and that's the testimony of two other women who also had not come forward until after the Access Hollywood tape came out, but then did. As I said in the intro, in a way, one way to look at this trial, in addition to, of course, what happened allegedly to the individual, is how literally to take the Access Hollywood tape, this claim that he just starts kissing women without their permission, et cetera, is how literally to take it as opposed to it being locker room talk, which is how Trump defended it in 2016 before the election.

Here's a clip from that New York Times video interview that I mentioned from just after the Access Hollywood tape came out. This is October 14th, 2016. I believe the tape came out on October 7th, so it's just weeks before election day, where one of the two who are now expected to testify in support of E. Jean Carroll, Jessica Leeds, describes what she says happened when she was on the same flight as Donald Trump as she was traveling for business. This is what they're likely to hear in court when Leeds testifies in the E. Jean Carroll lawsuit probably this week.

Jessica Leeds: "I sat down next to a young man, blonde, tall, and he introduced himself as Donald Trump. I was not really aware of the real estate world of Trump. We just chatted back and forth, nothing particular. It wasn't until they cleared the meal that somehow or another, the armrest in the seat disappeared and it was a real shock when all of a sudden, his hands were all over me.

He started encroaching on my space and I hesitate to use this expression, but I'm going to, and that is he was like an octopus. It was like he had six arms. He was all over the place. If he had stuck with the upper part of the body, I might not have gotten-- I might not have gotten that upset but it's when he started putting his hand up my skirt and that was it. That was it. I was out of there."

Brian Lehrer: Again, that's Jessica Leeds describing what she says happened when she was on the same flight as Donald Trump. He had apparently beckoned her there because the earlier part of her story that we didn't include in that excerpt was that a flight attendant came over to her in coach and said, "Would you like to move to first class?" It says she said sure and they moved her to first class and she found herself sitting next to this guy who she didn't know who introduced himself as Donald Trump.

Then you heard what she described there, that from the New York Times video interview with Jessica Leeds that took place a week after the Access Hollywood tape came out in 2016, though she said that incident happened over 35 years earlier. Jane, my question for you is, as a former sex crimes prosecutor, when and why is it okay to have another accuser testify who is not filing suit?

Jane Manning: The answer to that depends on the jurisdiction in which the case is being tried. This case is being tried in federal court. There's a federal rule of evidence, Rule 413. That was enacted as part of the Violence Against Women Act in the early 1990s. It explicitly allows similar bad acts, similar crimes to be shown to the jury as part of any sex crime trial. There are going to be two such witnesses in this case. One is Jessica Leeds and the other is Natasha Stoynoff who was a People Magazine reporter who was there to interview Donald Trump in 2005 and describes a very similar attack by Donald Trump.

How important will these witnesses be to the jury? Well, they're important to the jury for the same reason they are important to us, they show a pattern. It is possible that somebody might know a false accuser. There are false accusations in the world, and it's possible that somebody might know a person who is depraved enough to make a false accusation of rape. Nobody knows 26 false accusers. In fact, it's highly implausible that anybody knows three false accusers. False accusations are rare and far between.

The significance of these witnesses in Donald Trump's trial, they're not going to make the jury find him liable for assaulting E. Jean Carroll if they didn't otherwise believe E. Jean Carroll. If they didn't find her credible, the other witnesses are not going to make them convict. If they do believe her, they may provide some reassurance to people on the jury who are saying to themselves, "I really found her credible, but I still have this discomfort with finding someone liable based on the testimony of one witness about something that happened 27 years ago, I'd like something more."

For those jurors, these two similar crimes witnesses may be that something more. The other thing is that these witnesses in the way they describe the attacks, there's a real similarity to the pattern. Both Natasha Stoynoff and Jessica Leeds describe encounters that began as a perfectly appropriate conversation. "We were talking and then on a dime, it changed to sexual assault. There was a suddenness, and also a recklessness." Jessica Leeds assaulted on a plane where there were other people. Natasha Stoynoff says she was assaulted in Donald Trump's own home with a pregnant Melania upstairs changing her clothes.

There's a recklessness of bravado that is consistent with things we've heard Donald Trump say, "I can get away with anything. I can shoot someone on Fifth Avenue and get away with it." There's almost a thrill-seeking quality to seeing how far he can push it and get away with it. You hear that same bravado in the Access Hollywood tape. "You can do it. When you're a star, you can do anything. You can grab them by the private parts." Of course, that's not the word he uses. He uses a slur for a woman's body. "You can grab them, and they let you do it."

You ask the question, how literally will the jury take that Access Hollywood tape? Well, that's going to be up to the jury. The jury will judge how literally to take it. In particular, there are six men on that jury, and they're in a unique position to ask themselves, "Is this how guys really talk in a locker room?" I will tell you that when that Access Hollywood tape first came out, my younger son was nine years old, and he heard it on the news and came to me with a stricken look on his face. He said to me, "Mom, not all guys are like that." He said to me, "Dad's not like that, and I'm not like that."

I will bet you there are men on that jury who heard that Access Hollywood tape with the same sense of revulsion and the same certainty that, "I don't talk that way in a locker room and neither does any man I've ever associated with talk that way in a locker room." Those six men will be listening to that Access Hollywood tape and deciding, "Okay, is this just locker room talk or is this that same proud bravado in being able to do anything and get away with it that all three of these women have described?"

Brian Lehrer: Though that's one of the challenges because all six since the jury needs to be unanimous. It's a 9-person jury, I understand not a 12-person jury, and 6 of the 9 are men. All six of those men are going to have to come to some conclusion that that's not what I hear in a locker room. We'll see if that happens. Last question, Jane, for today. Do you think if E. Jean Carroll wins this lawsuit, that it sets a new legal precedent of any kind for rape trials, sexual assault trials in the criminal sphere, or in the civil lawsuits fear in any way, or is it just about these individuals?

Jane Manning: It may not set a new legal precedent. The judge has really applied the existing law in a very even-handed way. I don't think he's been out on a legal limb in any of his rulings, but it sets an important cultural precedent. I want to take you back to a moment in E. Jean Carroll's testimony that I said I wanted to return to, and it's the moment when she says, "Immediately, I called my friend, Lisa Birnbaum. My mind was still racing, I was still in shock. She had to tell me to stop laughing."

What I want to say about that is a couple of things. The jury will hear this testimony and though Tacopina seized on it and said, "You were laughing after being raped?" A couple of things about this testimony. The first is, who makes that up? Who makes that up? Trump's theory is that these three smart journalists got together and made up a story. If that were true, is this really what they would make up, or is that an authentic account of a woman who was still in a state of-- she said, "I was shocked, I was disoriented. I think my mind wasn't even working properly yet."

We know from neuroscience, and we know there's going to be an expert witness, we know that the mind in a moment like that is in a flood of fight or flight chemicals, the part of the brain that thinks things through is not yet back in control. When she was asked about that on the stand, she spoke about it so movingly, and she said, "I think what I was hoping is that Lisa would tell me everything was okay. As Lisa talked to me, and as my own brain came back into control, I realized everything was not okay."

That moment of counterintuitive victim behavior does not fit a script that any of us might write about how we expect a rape victim to behave, but that in a weird way might play to her advantage in front of the jury in the way that I just described. The jury might be fair-minded enough to ask themselves, "Wait, who would make that up?" It also gives us a chance, as a culture, to talk about this and to say, "Look, victims don't always do the things that the script says they should or ought to or would be expected to do. Yet we have to look at the whole story and the whole picture of everything that happened and all of the evidence in judging the truth of that victim's account."

It is the moment for an important cultural conversation. I'm grateful again to you, Brian, for uplifting that conversation on this show in your always thoughtful way. That's the opportunity that E. Jean Carroll's trial has given us all.

Brian Lehrer: We're grateful to you for coming on with us twice now during this trial and going over some of the details of what we don't get the privilege of hearing or seeing with microphones or cameras. Jane Manning is Director of the Women's Equal Justice Project which helps sexual and domestic abuse survivors navigate the legal system and works for systemic reform. She is also a former sex crimes prosecutor. Thanks again, Jane.

Jane Manning: Thanks, Brian.

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