Unpacking the $85 Million Defamation Verdict: Trump vs. Carroll

In a case that has sent shockwaves through the legal community and beyond, a jury awarded E. Jean Carroll a monumental $85 million in a defamation lawsuit against Donald Trump. Our latest episode takes you behind the headlines and into the heart of this landmark legal battle. We dissect the verdict, the First Amendment implications, and what this means for the future of public figures in the court of law.

Copyright 2024 Stephen E. Palmer - Attorney At Law

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511, a production of 511 South High Media LLC.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Yavitch & Palmer Co., L.P.A. 

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This defamation case, uh, with E. Jean Carroll involves Donald Trump

>> Steve Palmer: All in New York, too, by the way.

>> Norm Murdoch: So if I'm Bret Kavanaugh or I'm Donald Trump, and I am legitimately, just for sake of argument, not guilty of what these women have claimed, or you're.

>> Steve Palmer: Denying the conduct, why can't I talk.

>> Norm Murdoch: About, why can't I say she's a nut? Look, this is going to be a woman. Look, you've got to be kidding me.

>> Steve Palmer: Defamation of character and the slander and these kind of torts. And by torts, I mean I am suing you for things you said about me. Yes, those types of torts. Causes of action always conflict with the First Amendment. It doesn't mean one trumps the other. No pun intended. But that's the analysis. Yes, I have a right of free speech to say what I want. You have a right not to be defamed. And the law has to sort of sort that out. And one of the things that everybody has probably heard is truth is a defense. So if what you say is true, uh, that's a defense. It also matters if you're a public figure or not, public figures are given less protection by the law because you've put yourself out there as a public figure.

>> Brett Johnson: Uh, and the damage can be much more because of what you say.

>> Steve Palmer: Uh, well, you get less protection as a public figure because you have intentionally put yourself out there as a public figure.

>> Norm Murdoch: Right.

>> Brett Johnson: But what you say could hurt more because you're a public figure, so you have less protection.

>> Steve Palmer: Correct.

>> Norm Murdoch: Right.

>> Steve Palmer: Well, I think what they're saying, you have sort of given up some of your right of privacy because you've chosen to make yourself a public figure.

>> Norm Murdoch: Right. That might be the policy, yeah.

>> Steve Palmer: Um, and then you have the other side of the coin where in, say, my private business. So if, Norm, you slander me, uh, in my business, well, I get more protection there if it's not true. So it's like that becomes. I don't even have to prove your intent. Uh, it just is. This is why anybody who has ever, um, if you're an employer and you've asked for a reference from another employer, and you get an answer like, yes, that person worked here between January and February of whatever dates. Yeah, but can you tell me about this person's performance? All I can tell you is that person worked here between January and February of whatever dates, because they don't want to say anything bad.

>> Norm Murdoch: Ah.

>> Steve Palmer: Um, because they're worried about slander and these other things. So, uh, look, how does this sort out? It looks to me like Trump is targeted in New York, and this is obviously a homer jurisdiction, uh, against Trump. You can do whatever you want in New York and Trump will lose. Uh, and they're trying to bankrupt him. And I don't know what the court of appeals in New York will really, I don't know if this will filter all the way up to the US Supreme Court or not on some of these first amendment issues. I'm not familiar with the litigation, but it will be interesting to watch, because if this can happen to Trump, it can happen to anybody.

>> Norm Murdoch: It's literally a he said, she said situation.

>> Steve Palmer: Now, Trump has never done himself any favors with his comments, with his, you know, he's never done himself any favors. If you call Trump a dummy, he comes over the top. And I've always said he's the guy. Like, we all knew the guy, but there's nothing else. If you get in a fight and you go in your car and you get a tire iron, he's going to go get a big chain, and if you get your chain, he's going to get a gun. You get a gun, he's going to get a bazooka.

>> Norm Murdoch: All I can say, steve, is I've never raped anybody. And if a woman came out of nowhere where that I either knew beforehand or had just met or maybe never met, and she said, um, she takes me to court, right? Charges me with sex, uh, some kind of sexual predator, uh, kind of thing, civilly. Uh, okay. And then I get on tv, right? And I deny everything, and I'm outraged by it, and I call her a nut, right? Why shouldn't I be allowed to do that?

>> Steve Palmer: I think you should be allowed to do.

>> Norm Murdoch: Should be.

>> Steve Palmer: I think you should be allowed to do that whether you did it or care.

>> Norm Murdoch: I don't care that Trump pisses people off. He is allowed to defend himself in the public square.

>> Steve Palmer: Well, uh, what I'm saying is he is permitted to piss people off. Absolutely. But that invites conflict, and that matters.

Bret Starr: Trump inviting a counterattack with his comments about accuser

We've got two questions. What does the law prevent and what does the law permit, and then how should we behave and conduct ourselves to avoid these kind of problems? So I would never blame a woman for being date raped, but there is a world where you can avoid putting yourself at risk, uh, situation. So I'm not going to walk down the street holding a stack of money in the middle of the night, in the middle of the city, and then complain that I'm a victim of crime. I'm just not going to do those things.

>> Norm Murdoch: Right?

>> Steve Palmer: So, look, Trump is putting himself out there in a way that he is inviting or he's pissing people off on purpose and inviting a counterattack. I'm not saying that he's wrong in the law, but I'm saying he's not doing himself any favors. Well, he didn't attack, he didn't do.

>> Norm Murdoch: Anything that she is calling defamation until after she sued him.

>> Steve Palmer: Well, sure. So, look, if I'm representing Donald Trump in that scenario, and, um, he probably wouldn't have listened to me, but I would say, keep your damn mouth shut. You got to go win this case.

>> Norm Murdoch: Well, sure you would.

>> Steve Palmer: Right? Otherwise, you're going to invite more, right?

>> Norm Murdoch: Yeah.

>> Brett Johnson: And her case was based on she's lost employment because of the defamation, is that correct?

>> Steve Palmer: Well, I think she's saying that she's. I don't know what.

>> Brett Johnson: Yes, there's such an award.

>> Norm Murdoch: The short answer to Bret's question is yes. Didn't she say that is one of her claims?

>> Steve Palmer: All these things also require specific intent.

>> Steve Palmer: Think how helpless though you become when the standards of justice bend against you, uh, unfairly.

>> Norm Murdoch: Well, what did the New York legislature do to help her with this case? They passed a law that for one year, period, would open up to people who were beyond the statute of limitations, permit to permit just during this window. Think she filed her case on day one when the window opened. Right.

>> Steve Palmer: So think how this happens. Think what this does. And it's sort of like back to my impeachment argument. It's like, be careful, because eventually the devil turns back on you. It's like if one side is going to do it, the other side is going to do it. If there is no standard, this is like, uh, when people create their own version of truth. So I have my truth, you have your truth. When there is no baseline, when there is no standard, then there is no fairness. We have to be able to build our justice system on some bedrock.

What about double jeopardy when this goes up on appeal

>> Norm Murdoch: So let me ask you about it possible when this goes up on appeal, what about double jeopardy? The idea that there's a statute of limitations. It had told it had run, she couldn't sue the legislature.

>> Steve Palmer: Double jeopardy. Because I hear you, double jeopardy is criminal.

>> Norm Murdoch: So you don't think, uh, there might be another.

>> Steve Palmer: There might be other problems there. So, look, I'd have to give this some deeper.

>> Norm Murdoch: What about ex post facto.

>> Steve Palmer: It might be an ex post facto law, but they changed the law. It might be an ex post facto law, but again, I don't just forget, I'd have to research whether that requires government action, uh, in a criminal setting. So this is a private action. So if you're going to really dig into this, you're going to have to dig into the general or the legislative, uh, notes, the history, everything. Uh, look, Trump's got lawyers, I'm sure, who are doing this. So if they created a law that only permit, that permitted her to sue him, and that was the sole purpose of it, now, you might arguably have some government action.

>> Norm Murdoch: Okay.

>> Steve Palmer: Um, I don't know, but that would.

>> Norm Murdoch: Be good grist for an appeal, do you think? Maybe. Pretty good. I mean, the idea that they carved.

>> Steve Palmer: Out one of the issues, right? Is there actually a legal cause of action?

>> Norm Murdoch: Where's the equal protection?

>> Steve Palmer: All other might be an equal protection problem. Might be a due process problem.

>> Norm Murdoch: Okay.

>> Steve Palmer: Um, that's one of his issues. The other issues are going to be truth is a defense, or this didn't. Whatever.

>> Norm Murdoch: I know. I'm throwing this.

>> Steve Palmer: Then you've got, the amount of damages are astronomically.

>> Norm Murdoch: Come on.

>> Steve Palmer: Disproportionate to what's alleged.

>> Brett Johnson: It's just a big bill, isn't it?

>> Norm Murdoch: Yeah.

>> Brett Johnson: And again, where does this number come from?

>> Steve Palmer: It's just like we want to bankrupt.

>> Brett Johnson: The guy to that extreme, isn't it?

>> Norm Murdoch: Yeah. The jury deliberated for 2 hours as.

>> Steve Palmer: A bigger picture problem. All of this is backfiring because the more of this crap I've, uh, always said this. You take a bully, and then you can beat the bully down so far, but eventually he becomes the victim.

>> Norm Murdoch: Yeah, right.

>> Steve Palmer: Eventually he becomes the victim.

>> Norm Murdoch: They've done that.

>> Steve Palmer: And now this is sort of creating a groundswell of support for Trump. Like, hold on a second, guys. This isn't fair. You can't go after the guy, but do it within the bounds of normal fairness and law.

>> Norm Murdoch: It is election interference, and it starts.

>> Steve Palmer: To feel that way.

>> Norm Murdoch: That's right.

>> Steve Palmer: Um, true or not, it starts to feel that way.

California woman gets no jail time for stabbing boyfriend 108 times

>> Norm Murdoch: Let me bring this other case. Now, this came out of California. Now, this is criminal, uh, not civil. Like the gene Carroll, uh, trial. Um, this young lady, I think she's like, uh, 28, 26, something like that. She's in her 20s. Her name is Brynn, uh, spicer. Or if I may not be pronouncing it, Bryn spicer. Bryn spicer. And, uh, she got high with her boyfriend. And, uh, pot today is way more potent than it used to be, so I guess I can understand how you could get blown out of your mind. Ah, smoking pot. Um, and she lost her shit and stabbed her boyfriend 108 times. Killed him, of course. Um, somebody called the cops. When the cops showed up, they literally had to take the knife out of her hands because she was starting to cut herself. Anyway, she was found guilty. Uh, she was convicted of involuntary homicide is the specific California, um, um, uh, description. She got no jail time, 100 hours of community service, and two years on probation. And the judge who, uh, decided what the sentence, um, would be, explained that the reason she got no jail time was because she had diminished capacity, uh, and was not responsible, uh, for.

>> Steve Palmer: Well, look, this is as old as the hills, temporary insanity. And there used to be a defense called voluntary intoxication, generally speaking, that you got so wasted, you couldn't form the mental mens rea element. So I guess we'll look at it this way. Crime, traditional crime in the western sort of, uh, common law tradition, uh, is you have to have two things. You have to have an act called the actus Reyes, which means the thing. And then you had to have the mental element, or what's called the men's reyes. So you have to have some degree of intent. Now, the level intent changes depending on the crime. So you have to have less intent, um, for something like, um, well, no intent. For something like speeding, that requires zero intent. It doesn't matter if you meant to do it or not. And then to commit a purposeful crime like murder, you have to have specific intent. I intend to kill you. Uh, and then going up and down the line, you have things like negligence. You have recklessness, you have knowingly. And then you have purposely. What they're looking at is an external factor here. Her mental status at the time of the crime had diminished her ability to establish the mens rea element, or the intent element to commit the crime. Now, that can manifest itself in a couple of different ways in the criminal justice system. So look at it. It's like a sliding scale, like, on the most extreme side for the defense, you could say that's an absolute defense for the crime. So in our situation, everybody's heard of temporary insanity, taking away the intoxication part for a second, and then you could slide it all the way to the other side, where it's no defense to the crime. Um, and that just depends on what the legislative branch says. That's the first curve. The other one is, how does the system treat it? Because the prosecutors have discretion. Judges have discretion. Prosecutors have discretion in what they're going to charge. And you could say, even though we could prove a purposeful, ah, murder here because the law would let us, we're not going to pursue that because there's some mitigating circumstances. While they may not be a defense, we're going to take that into consideration as we decide what to charge this person with. And then you get it all the way to the judge, who takes similar factors into consideration when imposing the sentence. So I don't know the facts here, and I don't know the California law here. Um, but this is a situation where there was obvious mitigation. She had lost her mind for whatever period of time, committed horrible crimes. It's a hard decision to decide what to do with that person, right? So it's like everybody knows, uh, this is the example I use when I talk to juries. Everybody knows as a kid, and we all said this, when you go tell on your brother or your sister or your best friend, everybody's heard a kid, you did that on purpose. You hit me and you did it on purpose. And that matters, right? If you did it on purpose, that matters. If you did it by mistake, it's different. If it's something else, it's different. So I can't say anything good or bad about this. I don't know. And then the other thing you got to consider is, what's her history? Has she ever done anything wrong? Has she lived a good. And maybe the other factor, it's very relevant these days is what does the victims family say? Because now our constitution here in Ohio, and I'm sure California, they have, uh, amendments or laws that talk about victims'rights. So then on the one hand, you could have the victim's family coming in and saying, not only do I want this person dead, I want him, uh, tortured before he dies. And then on the other side, they could say, look, you hear this in, um, vehicular homicide cases where a best friend kills another in a car. We're praying for him. Um, we don't blame him. We don't want anything to happen to this guy. We know it was a mistake. And the swing there would be like ten years or no years.

>> Norm Murdoch: Wow.

>> Steve Palmer: I would want to know a few things. What was the evidence that she was completely impaired and, uh, out of her mind? And how strong was that? How is it that she consumed the drug? Did she even know that was the drug laced with something that she didn't know? So you could maybe take away some of the initial intent to get high. Um, what did the victim's family want out of this? What was her history, her character, how she lived her life? And what is the risk that she's going to do it again? What's the risk of recidivism? Uh, then, of course, you've got punishment. How much do we need to punish somebody? So I can't say anything good or bad about it. It just is one of those cases that, uh, uh, is interesting.

Steve Scott: There's still some semblance of a voluntary intoxication defense

>> Norm Murdoch: So, Steve, if this happened in Ohio, and, uh, let's substitute alcohol for the, uh, marijuana. Now that marijuana is recreational in Ohio, I get, and we probably will see a version of this in Ohio, maybe. Yeah. Uh, maybe. But in Ohio. Okay, so a husband gets himself all pissed, uh, know, drinking whiskey. And he beats up his wife. And she mean, you can't just get off because you're, you know.

>> Steve Palmer: Well, you can mitigate it.

>> Norm Murdoch: Perhaps.

>> Steve Palmer: It can maybe be mitigated. I mean, I've had a case where somebody was completely blotto. And, uh, there's still some semblance of a voluntary intoxication defense. And my client didn't walk away. But it helped me resolve the case for less of a punishment. But in your scenario. In this scenario, the one you're talking about in California.

>> Norm Murdoch: No.

>> Steve Palmer: I am presuming that's what's killing. I am presuming that there was no passion behind the crime. In other words, there wasn't a fight that made any sense. So if I flip out and I see you as the antichrist attacking me, and I kill you, all right. And say, that's without drugs. I just happen to be insane. That would be the defense of insanity. I plead insanity. Um, or maybe even temporary insanity. Now, if you and I hate each other. And I get drunk and pissed off and beat you to death, well, that's a whole different animus, right? That's a whole different mens rea.

>> Norm Murdoch: Yeah. Okay.

>> Steve Palmer: You need to know facts.

>> Norm Murdoch: Okay. Yeah. And one little detail, uh, in that case that I didn't write down. But I do remember it now that you brought that up. Um, was the state's own expert witness a psychiatrist or psychologist? I don't know which. But, uh, their expert witness said that she had no capacity to, uh, decide right from wrong.

>> Steve Palmer: The classic insanity test is you don't know right from wrong. And you can't understand the nature and consequences of your actions.

>> Norm Murdoch: Because she was so high.

>> Steve Palmer: She was in another monotonous test. For those lawyers out there.

>> Norm Murdoch: I guess that testimony coming from the prosecution's own witness.

>> Steve Palmer: Now, of interest, the, uh, old Jimmy, uh, Stewart movie, uh, with, uh, George C. Scott, anatomy of a murder. They talk about this insanity test. There's like. It's a temporary insanity case. The guy flips out because his wife is talking to some other guy at a bar. Or, you know, the old sort of salt of the earth fisherman comes along and defends it. And he talks about the monotony test. And, uh, there used to be two different insanity tests. One was called an irresistible impulse. And the other is, you don't understand the nature and consequences of your actions. And I think, um, most states or most jurisdictions. Sort of have combined some version of that. Uh, so the irresistible impulse is almost gone. So that would be like, I just couldn't control myself. So I beat you to death. That doesn't quite make you insane anymore. Uh, so been standardized. And there are experts and psychologists who do these evaluations. They even have standard psychological testing to help, like tools they use to sort of. You put in data and you spit out a result so they can talk about it.