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Manhattan judge rejects defense lawyer's 'flip' argument in drug case

The judge said he will not permit the reference to President Donald Trump's remark that flipping witnesses "almost ought to be illegal," saying it was not relevant in this case.

A Manhattan federal judge presiding over a drug trial last week shot down a defense lawyer who tried to undercut the prosecution case in his summation by bringing up President Donald Trump’s criticism of cooperating witnesses who “flip.”

“I am not going to permit you to argue here regarding statements made by the President of the United States in a case that has nothing to do with this one,” U.S. District Judge Gregory Woods told defense lawyer Kafahni Nkrumah.

Trump, in the wake of the guilty plea of his former lawyer Michael Cohen and the conviction of his former campaign manager Paul Manafort, complained last week that flipping witnesses to cooperate with prosecutors “almost ought to be illegal.”

“I know all about flipping,” the president said in a Fox News interview. “For 30, 40 years I’ve been watching flippers. Everything’s wonderful and then they get 10 years in jail and they flip on whoever the next highest one is, or as high as you can go.”

Nkrumah, during closing arguments Thursday in a drug case involving defendant Jamal Russell, was quickly cut off when he brought up Manafort’s name while attacking the credibility of a cooperating witness. He called up by Woods to discuss the reference outside the jury’s hearing.

“I believe it is pertinent because it is concerning cooperators and people’s opinions of cooperators,” Nkrumah told the judge. “And I believe that the president’s opinion of cooperators is just as pertinent as anyone else’s.”

“You cannot refer to another case, in another district, involving a polemic issue regarding the President of the United States,” Woods said. “It’s not pertinent.”

Nkrumah withdrew his request to reference Trump, but Woods brought the exchange up again after the jury was excused, noting Trump’s remarks about flipping which he incorrectly believed had come in a tweet.

“I should note the tweet is that it ‘almost ought to be illegal,’ but as we all know, and as I am going to instruct the jury, it is not illegal,” the judge said. “And so I was also concerned about the confusion that may be wrought upon these jurors by presenting that as the view of the speaker.”

“It is arguably a politically charged, polemic issue that need not be introduced into this case,” Woods added. “…The views of that person with respect to this issue is not in evidence in this case, and I do not believe that it should be put before the jurors.”

Nkrumah, in an interview afterward, said he believes misuse of cooperators — who don’t have to be corroborated in the federal system — produces untrue testimony by individuals who want a break from prosecutors and is part of an unfair system that leads to a high conviction rate.

He said he brought up Trump to try to appeal to the jury's "moral sense" and bring some skepticism to its consideration of the government case.

“The president, no matter how controversial, has his opinions and sometimes his opinions happen to be on point,” Nkrumah said. Referring to his client's case, he added: “We had a cooperator whose freedom was so important he would lie about it, and that’s what I hoped to get across to the jury.”

It was the first known case in which Trump’s opinions about cooperating witnesses have come up. Russell was convicted on a conspiracy charge and found not guilty on a firearms charge.

The U.S. attorney’s office declined to comment on Trump’s views.

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