On 5/12/2024 10:47 AM, Rick wrote:
Seems to me the prosecution made an error in some of their questioning
of Stormy Daniels. The case isn't about whether Trump had sex with
Daniels. It is about whether Trump falsified books to generate a payment
to Daniels, thus also violating campaign finance laws, to keep her quiet about her allegation of having sex with Trump. Whether or not she
actually had sex with Trump is actually irrelevant. Accordingly, asking Daniels whether Trump used a condom and whether the sex was "fast" seem
not only irrelevant, but inflammatory.
The defense asked for a mistrial on this point. Prosecution claimed the questions were appropriate because the defense denied in their opening statement that Trump had had sex with Daniels. Defense claimed the questions went beyond just eliciting whether they had sex and got into salacious details designed to prejudice the jury. Judge had an interesting response. He agreed the questions went too far but pointed
out that the defense could have objected but did not.
This brings up three questions to me:
1) Can Trump use an argument of ineffective counsel in making an appeal that his defense lawyer was essentially incompetent? Or is this type of appeal pretty much denied to someone with Trump's resources who can theoretically afford whatever lawyer he wants
2) Is it possible Trump's lawyer was actually more crafty than
incompetent and deliberately let the questions be answered knowing it
could form the basis for an appeal?
3) In general, how much leeway will a judge give when hearing what he
or she knows is an inflammatory or inappropriate question that the
defense should object to but does not?
1. AFAIK the claim of "ineffective assistance of counsel" is not limited
to people using public defenders or court-appointed lawyers, although
those - especially the latter -- are much more likely to be ineffective.
But if Trump claims that, the appeals court is likely to ask, "So, why
didn't you tell your lawyers to be more proactive? If they weren't doing
the job, why didn't you fire them and get better lawyers.(*)
2. If the appeals court even smells the possibility that the lawyer was intentionally creating grounds for an appeal, they'll toss it out so
fast that Trump's (and the lawyer's) head will spin. And the lawyer will
be subjected to disciplinary action by the state's office that enforces
legal ethics.
3. It's not the judge's job to spot inflammatory/inappropriate
questions. A judge is supposed to be an arbitrator, deciding things that
are brought to his attention by one of the lawyers. Or the litigant, if
acting pro se. Judges _will_ give a little more leeway to pro se
litigants because they don't have the training to spot these problems.
The judge *might* even ask the litigant, "do you have a problem with
this?" or some such.
But when a litigant is represented, the lawyers are supposed to be
paying attention and object. That might have resulted in the judge
telling Daniels not to answer. Or if she has already answered,
instructing the jury to disregard the question and answer (and striking
it from the record). After a few such events, the judge might caution
the lawyer, and if it goes on, might even grant a mistrial.
(*) Note: Trump's problems with lawyers arise from his own habits - he
doesn't pay his bills. Not just lawyers - he got so notorious for
refusing to pay subcontractors that nobody in New York's construction
business will work for him. When word gets around that you don't pay,
you either pay in advance for every hour the lawyer puts in, or you take lawyers who are so hungry that they'll take a chance on having to sue
you to get paid.
--
I do so have a memory. It's backed up on DVD... somewhere...
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