Hunter Biden Trial Day Six: Hunter Doesn’t Testify, Closing Arguments (Update: Deliberations Begin)

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Hunter Biden Trial Day Six: Hunter Doesn't Testify, Closing Arguments (Update: Deliberations Begin) 1

Today is day six of the Hunter Biden gun trial. Last Friday the prosecution rested its case and the defense called a couple of witnesses. Their chief witness was Naomi Biden, Hunter’s daughter. But as I noted at the time, the sense in the room was that Naomi’s testimony backfired. Here’s how Axios reported it.

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Hunter’s oldest daughter, 30, clearly wanted to help her father convince jurors that he wasn’t taking drugs when he bought a gun in 2018 and signed a federal form swearing he wasn’t a drug user.

But probing questions and old text messages presented by the prosecution Friday made the president’s son look more like an erratic dad than a good father who was getting sober in the week after he bought the gun…

When the court broke for lunch after Naomi’s testimony, Biden family members looked shaken and crowded into a small room for the defense team, which was so full of people they struggled to close the door.

The Washington Post came to the same conclusion about Naomi’s testimony.

“I’m really sorry dad. I can’t take this,” Naomi Biden texted on Oct. 18, while they were both in New York, according to prosecutors. “I don’t know what to say, I just miss you so much,” she texted. “I just want to hang out with you.”

“I’m sorry I’ve been so unreachable,” Hunter Biden replied. “It’s not fair to you.”

The questioning of Naomi Biden clearly took a toll on first lady Jill Biden and other members of the Biden family, who sat in the first row, steely-eyed. At one point, Lowell interrupted the cross-examination to provide his client’s daughter with a bottle of water.

After that debacle, Hunter’s team canceled the planned testimony by his uncle James Biden and court ended early for the day. The defense said they would make a decision about the testimony of their last witness, Hunter himself, over the weekend.

Generally, it’s considered risky to have a high profile defendant testify on his own behalf in a case like this. So it came as no surprise today when the defense announced Hunter would not be testifying.

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Instead, the defense arrived this morning asking the judge to revise the jury instructions in a way that would be more favorable to their case. Judge Noreika largely said no to those requests.

Hunter Biden’s attorney Abbe Lowell has asked Judge Noreika to leave in “did not testify” in the jury instructions as it relates to the defendant, indicating Hunter will not testify.

Judge Noreika decided she will not allow the defense to include their requested “theory of the defense” instruction in the final jury instructions. She called it an “argument” and she said she didn’t think it was “appropriate” for her to say.

After about an hour of wrangling over the jury instructions, the defense rested their case. Then the prosecutors called back one of their previous witnesses, FBI Agent Erika Jensen. The core of the defense case is the idea that Hunter was not doing drugs in October 2018 at the time he bought the gun and therefore didn’t “knowingly” lie on his ATF form when he put down that he was not a drug addict. The problem is that there are text messages which seem to indicate he was still using.

On Oct. 10, Jensen said, Hunter Biden sent texts to Hallie Biden about meeting someone at a 7-Eleven convenience store. It is apparent from the context surrounding the messages that the person he was going to meet was a drug dealer…

The prosecution showed references within text messages that were not previously presented, discussing being at or near a 7-Eleven on the 10th, and on the 13th — which is on either side of the gun purchase on the 12th.

On cross, the defense tried to argue that Hunter’s plan to meat someone at 7-11 at 3 am in the morning (the person was identified only as Q in his phone) didn’t prove that Hunter was buying drugs. Maybe the guy just has a late-night Slurpee habit.

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Lowell asked about texts with someone identified as Q, asking Jensen to confirm that there was “not a guy named Bernard, not a guy named Mookie?” “Correct,” said Jensen.

Lowell then asked Jensen about texts that Hunter Biden sent Hallie Biden early in the morning of Oct. 16, 2018.

When he texted her “I’m almost there,” Lowell asked Jensen if she knew where Biden was coming from, implying that he could have been coming from visiting his granddaughter Finnegan Biden in Philadelphia.

After that was over, the prosecutors rested their rebuttal case. Then it was on to closing arguments. Prosecutor Leo Wise opened by telling the jury to ignore Jill Biden (who was seated in the front row again today).

“All of this is not evidence,” said Wise, waving his hand at the packed courtroom, which included first lady Jill Biden. “People sitting in the gallery are not evidence.”

Then he went right to the heart of the defense case, saying that Hunter knew he was an addict at the time he bought the gun.

Biden “knew he was using drugs, and that’s what the evidence shows. He knew he was addicted to drugs, and that’s what the evidence shows,” Wise said.

He pointed to both testimony and text messages that showed Hunter was still using in October.

Prosecutor Leo Wise said the testimony from ex-girlfriend Zoe Kestan was that the defendant used drugs in Malibu in September, a little over two weeks before the defendant bought his gun.

“You could convict on those facts alone,” he said…

“We see in these messages him buying drugs, telling other people he was using drugs,” Wise said.

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There were so many messages related to drugs that prosecutors put them in a Power Point slide:

Prosecutors showed a PowerPoint presentation with titles like “Drug messages October 2018” and “Addiction messages October 2018,” which feels very effective.

They also put the messages on a calendar showing there were just as many messages about drugs in October as their had been in July (when no one disputes Hunter was smoking crack every day).

“This idea that there was heavy drug use and that correlates with many messages” in July “and that doesn’t exist in October” isn’t borne out by the evidence, he said.

Wise then put up a very visually busy calendar, which was color-coded by “drug messages,” “addiction messages,” “drug paraphernalia” and “cash withdrawals.” Nearly every day of October 2018 was colored in some way.

Biden’s ATM receipts also tell a story:

Wise suggested that attempts by the defense to describe Biden as having gone clean before buying the gun were undermined by evidence that showed Biden withdrew $150,000 from bank machines in those months, and testimony from family members that they found drugs in one of his trucks.

“What leads to these three felony charges in this case were his choices, not anyone else’s,” Wise told jurors. “The evidence is that the defendant made choices to buy a gun and lied about it and knew he lied.”

After about an hour the prosecution was done and defense attorney Abbe Lowell got up to make his closing argument. He argued that the many passages present from Hunter’s book talking about his addiction were not a diary. Biden’s book suggested that his August rehab and sobriety lasted about 2 weeks.

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Lowell argued that Hunter Biden’s writing about being an addict in the book, which was published in 2021, doesn’t mean he knew he was an addict during the period he described from 2015 to 2019.

He also tried to undermine the testimony of Hunter’s ex-girlfriend Zoe Kestan. Kestan testified last week that she frequently saw Biden smoking crack including in September, just a few weeks before he bought the gun.

Defense attorney Abbe Lowell said Kestan met with prosecutors many times before trial to “rehearse” her testimony – instantly drawing an objection from the special counsel team. It is not uncommon for prosecution witnesses in a trial to meet with those attorneys before getting on the stand.

Lowell noted that Kestan helped connect Hunter Biden with drug dealers, enabling him.

As for Hunter’s own messages saying he was using crack, those were lies according to the defense.

The defense reiterated their point that the jury shouldn’t rely on Hallie Biden’s testimony as proof of Hunter Biden’s whereabouts because he lied to her to avoid seeing her.

“Poor Hallie Biden,” Lowell said when describing her testimony.

The defense case is really just an attempt to deny the obvious:

Lowell is also hammering into the jury that prosecutors’ case is based on “suspicion” and “conjecture.” 

“There was no actual witness” to Hunter Biden’s drug use during the operative time in 2018, Lowell asserted.  

Hunter Biden’s repeated withdrawals of cash could be for other “operative purposes” besides drug purchase, he said, and prosecutors didn’t definitively prove “when” remnants of crack were left on a leather pouch Hunter owned.

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They are really pushing the idea that, unless prosecutors have a video of Hunter smoking crack on the day he bought the gun, he must be innocent. It’s an absurd standard which ignores the clear pattern of behavior and Hunter’s own words to the contrary. Sure, Hunter texted he was smoking crack but did you see him do it? Lawyer Abbe Lowell also blamed the prosecution for cross-examining defense witness Naomi Biden.

It was “extraordinarily cruel” for prosecutors to ask Naomi Biden if she used drugs to try to fill in the “gaping holes” in their case, Hunter Biden’s defense attorney Abbe Lowell said during his closing argument.  

Hunter’s defense eventually wrapped their closing arguments after an hour and a half. Now the prosecution is presenting a rebuttal. I’ll add an update below once that happens. It sounds like this case could go to the jury today.

Update: Prosecutor Derek Hines gave a brief but effective rebuttal to the defense’s closing argument.

“Mr. Lowell suggested you have this man’s life in your hands. You don’t have this man’s life in your hands,” Hines said. “He keeps saying he’s telling you a story. … That’s exactly what he’s done in this case. It’s simply a story. A fictional story.”

“Who called the defendant’s daughter as a witness in this case?” “Not us,” Hines said, as he called Naomi Biden’s testimony “uncomfortable.”

He wrapped up by saying, “Choices have consequences, and that’s why we’re here.” Afterwards, the judge read the 30 pages of instructions to the jury and then they went to deliberate at around 3:30 pm local time.

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This really should be an open and shut case. Still, I’m not sure they’ll reach a verdict in an hour or a little more. They may want to put in a little more time to make it clear they took their responsibility seriously. Or there could be a vote for nullification in the group which would drag this out. Obviously I’ll update below if that happens.

Biden is facing three charges and if convicted on all of them he could face up to 25 years in prison. But realistically, this is a first offense so he won’t see anything like that. This could wind up being probation and a fine.

Update: Jurors have wrapped up for the day without a verdict. We should get one tomorrow though.