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Amid Avenatti Jury Selection SDNY Judge Gardephe Nixes Audio in Opening and Shortens Day

By Matthew Russell Lee, Patreon Thread
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SDNY COURTHOUSE, Jan 28 – With jury selection for the trial of Michael Avenatti having begun on January 27, by the end of January 28 those in the pool were still being questioned if they know Mark Geragos or Phil Knight or Boies Flexner.

 At 4:30 pm Judge Paul G. Gardephe ended that questioning and turned to the lawyers in the case. Assistant US Attorney Robert Sobelman argued for, and won, a prohibition on Avenatti's lawyers using audio not yet in evidence as part of their opening, set for a bit more than 30 minutes.

  Avenatti's lawyers won more time with their client, getting a shortened trial day at least until Judge Gardephe thinks the trial might not end in two and a half weeks. Impromptu live tweeted thread here. More on Patreon here.

  The opening arguments and more should happen on January 29, after what Judge Gardephe predicted as 15 more minutes of general questions, then specifics questioning, then peremptory challenges (10 for the defense, six for the government). It'll all systems go. Watch this site.

 it was decided on January 22 that Stormy Daniel vs Trump can be brought up in opening statements, and in all probability even more during cross-examination of government witness Gary Franklin - but that Colin Kaepernick could not, at least not initially. Live tweeted thread here.

   Judge Paul G. Gardephe of the U.S. District Court for the Southern District of New York declined, however, to postpone the trial for a week. He told Avenatti's lawyers that if they have a problem accessing him in the MCC jail as they have complained, to raise it to him again.

  Now on January 26 the US Attorney's Office has argued against Avenatti's renewed argument to cite Colin Kaepernick: "the defendant asks this Court to permit him both to mention and discuss Colin Kaepernick. (Def. Ltr. 4-5.) However, the Court already ruled that the defendant may not, unless Mr. Kaepernick’s name is on a recording that will be heard by the jury. (See Tr. 149:2-11 (Jan. 22, 2020).) And the defendant acknowledges that Mr. Kaepernick’s name is not on any such recording. (Def. Ltr. 4.) The defendant’s argument is thus effectively a motion for reconsideration. “The standard” for reconsideration “‘is strict and [such a motion] will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.’”

Rightly or wrongly, Mr. Kaepernick is a controversial figure. Compare, e.g., Heroes of the 2010s: Colin Kaepernick, here (last visited Jan. 26, 2020), with, e.g., NFL Executive: Colin Kaepernick Is ‘A Traitor,” here (last visited Jan. 26, 2020), and, 'He's a racist': Graham rips 'loser' Kaepernick for 'un-American' criticism of Soleimani strike, here (last visited Jan. 26, 2020). And, importantly, his work and relationship with Nike, in particular, again rightly or wrongly, also is controversial. See, e.g., When It Comes to Colin Kaepernick, the Flag and Nike, It’s Just Business, The Wall Street Journal, July 3, 2019, available here; Nike drawn into NFL-Kaepernick dispute over private workout, here (last visited Jan. 26, 2020). That presumably is why the defendant is fighting so hard to use his name, when it is otherwise wholly irrelevant. And it is precisely why the defendant’s argument should be rejected, again "

More on Patreon here.

      The trial will have a soft beginning on January 27, with a questionnaire being distributed to prospective jurors. The trial should take two and a half weeks, Judge Gardephe said. The case is US v. Avenatti, 19-cr-373 (Gardephe).  


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