The Trial: Verdict Watch

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This is Bad Rap, The Case Against Diddy.

I'm Brian Buckmeyer, an ABC News legal contributor and practicing attorney.

This episode, Verdict Watch.

The jury in USA v.

Sean Combs has spent nearly two months listening, listening to jury selection, opening statements, dozens of witnesses, and closing arguments.

On Monday, they were able to discuss the case for the first time.

Before the jury was sent away to deliberate, Judge Supermanian spent Monday morning giving them instructions.

The judge told the jury, quote, you have to decide which witnesses to believe and which facts are true.

The judge then walked the eight men and four women through each of the counts in the indictment, racketeering conspiracy, sex trafficking, and transportation to engage in prostitution.

Combs has pled not guilty to all of them.

The judge also explained what elements need to be proven in order for the jury to convict.

Then, they were sent away with portions of the trial transcript, a laptop with the evidence loaded onto it, a list of exhibits, a copy of the judge's instructions, and a copy of the verdict sheet.

The group chose a four-person, someone who will lead them in their deliberations and sending notes to the judge.

By mid-afternoon, the four-person already had an issue for the judge.

They sent him a note about one of their fellow jurors.

They said they were concerned that juror number 25 was having trouble following the judge's instructions.

Juror number 25 is highly educated and works as a scientist.

So the idea that he was having trouble following instructions just about an hour into deliberations kind of took me by surprise.

It's just not a common issue.

The judge told the jury to continue deliberating and suggested he might offer firmer instructions on the law if the issue with juror number 25 continues.

Aside from any issues or questions that may come up, nothing happens in court as the jury deliberates.

They'll discuss the case as long as it takes until they all can come to an agreement.

And so now, we wait.

And since we've got some time, let's answer a few more of your great questions.

Hi, Brian.

This is Penny from Kernersville, North Carolina, again, again, calling in with a question.

Just a little over an hour into the jury deliberations, a note was sent back to the judge about one of the jurors not being able to follow the judge's instructions.

Not really sure how this is going to play out yet, but I'm already thinking about this being really good framework for a possible appeal if there is a conviction.

Is there case law for this type of appeal with jury deliberations?

Thanks so much.

Penny, case law?

Oh, man.

Let me think this one through.

It would depend on what the issue is.

So right now, we just know that this juror, according to the four person who wrote the note and potentially some people in the room, believe that this individual cannot follow the rules.

It would depend on what rule they cannot follow.

It depends on what they said to the jury.

If they're saying, I'm not willing to deliberate.

I have my opinion and that's it.

I'm not going to be swayed or moved in any way and I will not interact with other jurors to deliberate, then yes, that's an issue.

And there is case law on that, that that person should be removed.

If the issue becomes cured in the sense of this is the first and last we hear about this issue, the person continues to deliberate, and there's no issue going forward, then the case law that I know at least, there should be no issue there.

So, at this stance, we unfortunately don't have the information to say where we would go.

And at this point, I think the judge is very cautious in terms of interrupting meddling inquiring of the jury because he doesn't want to shake things up too much he's hoping that the jury can just kind of figure it out themselves and continue working with each other to resolve the issue and if the issue is resolved then to answer your question no there would be no legal basis or no case law to have to appeal on this but The defense team is definitely going to find one if there is.

All right.

Next question.

Hi, Brian.

This is is Stacey from Wisconsin.

I know it's been said that typically when a jury deliberates longer, it's better for the defense.

Is that the same for this case as well?

Or is this going to be a new creation of its own being?

Thanks.

Stacey from Wisconsin, I think the idea still works in this case.

And the reason why I say that is because look at the styles of the closing arguments.

For the government, they are formulaic.

One plus one equals two.

Element plus element element equals conviction.

For the defense, it was much more of a conversation of, doesn't this seem peculiar?

Isn't this something you should think about?

Doesn't this raise reasonable doubt?

And just the style and the approach of either side would suggest that one wants you to very formalaically and quickly apply facts, while the other one wants you to consider and question facts.

And so that's often why that adage comes up, because the defense will often be the latter and the government government the former.

On to the next question.

Mr.

Buckmeyer, my name is Brandon.

I'm calling from Pennsylvania.

Is my understanding correct in that every single juror needs to agree to every single verdict for every single count?

If one juror doesn't agree with one count, would the jury be a hum jury?

And if that one juror doesn't agree with a guilty verdict for one count, does that result in a mistrial?

Thank you, and have a good one.

Thank you, Brandon from Pennsylvania.

So I think the easiest way to do it is think about mistrials and acquittals or dismissals or convictions from a count-by-count basis.

Because yes, if 11 jurors found Sean Combs guilty of racketeering conspiracy and one says no, and to your point, just kind of holds out, then as it applies to that count, they would be hung, which would cause a mistrial as it applies to that count.

If the jurors are unanimous on another charge, like with the sex trafficking, but hung on the racketeering, then they would be hung, or there'd be a mistrial as to the racketeering, but a conviction on the sex trafficking.

Thanks for the question, though.

All right, let's take a listen to the next caller.

Hey, Brian, it's Rachel from Missouri.

My question is: will the jury jury be able to

talk about what they saw after the case is over?

Or are they never allowed to talk about it again?

Just wondering, will we find out what they saw on the tapes, what they saw behind closed doors?

Are they going to write books?

Okay, well, thank you.

Have a great day.

Rachel from Missouri, thanks for the question.

While I don't know if there will be a book, The jurors are absolutely allowed to speak about the case in any way, shape, or form after they are being discharged of their duty, meaning that a verdict has been rendered one way or another.

So, could there be a book?

Sure, they would be well within their right to do so, and I think it'd be an interesting page turner for all of us following this case.

More of your great questions after the break.

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No, to you.

The Roses were living the dream.

More champagne for me, people.

Until it all came crashing down.

He got fired by it.

From the director of Meet the Parents.

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On August 29th.

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Rated R.

Under 17, 9 Minute Without Parent.

In Theaters Everywhere, August 29th.

Hey, Brian.

This is Mark from Lake Norman, North Carolina.

My question is about sentencing in the event that Sean Combs is convicted.

We haven't heard about how that would work, and with the multiple charges carrying different sentences and different weights, could you maybe go through from the lightest to the heaviest in what he could be facing?

Thanks again, and great podcast.

Take care.

Bye.

Thanks for the question, Mark.

And it's always good to think about what could possibly happen when we talk about these cases.

So I'll go, as you said, from the lightest sentence to the heaviest.

The transportation to engage in prostitution, there are two counts of that.

There's no mandatory minimum.

So theoretically, he could get probation.

He could get no jail time.

But the maximum is up to 10 years.

Then you have sex trafficking by force, fraud, or coercion.

Now, there's a very specific subsection in which the statute that talks about sex trafficking of individuals that are not minors.

But when you use force, fraud, or coercion or the threat of force, the mandatory minimum is 15 years to life.

Each one of those counts carries that for a possible sentence against Sean Combs.

For the racketeering conspiracy or racketeering or RICO, as you might have heard it, you're looking at a possible sentence of life in prison.

One of the difficult aspects of this to consider as well is when it comes to the federal prosecutorial system, you get a sentencing range.

So it doesn't mean that Sean Combs will get 10 years or 20 years or life in prison.

They will evaluate both the mitigating and aggravating circumstances.

And the feds like to use months as ranges.

So you might get something like 72 to

110 months of possible jail time for the sex trafficking based on those various factors that he's looking at.

The big thing too is whether or not a charge is run consecutively or concurrently.

So we're going to have have to wait and see, but yeah, there's a lot of different ways this could pan out.

Hi, Brian.

My name is Jessica.

I'm calling from South Carolina.

And I wanted to ask about the defense's decision not to call witnesses, but their ability to still present evidence.

Previously, I believe you mentioned that a witness must be testifying about the evidence specifically for it to be introduced in the trial.

But if the defense has chosen not to call any witnesses, how are they then able to introduce new evidence?

Have a great week.

Thanks.

So Jessica, you are right.

I think at one point in time I said that, and that is true-ish.

So there are different ways in which evidence can come in where no one is actually testifying to it.

One of the ways, like in this case, we saw a lot of it from the government's case, is through stipulation.

It's where both sides agree that information will come in because they stipulate to it, that there would have been a witness who would have testified to it, but for whatever reason, both sides say, you know what, we'll just let this come in.

And that's what we saw in a lot of the defense's case.

There is this other way of doing it as well.

And that's through documents that are what's called self-authenticating, that there are certain caveats to these documents that we believe them to be true based on the way in which they are created and stored and maintained.

Those are often called business records.

So, like a banking statement or a flight itinerary, something that was not made for the purpose of prosecution, but is kept in the ordinary course of business.

That's another rare way of doing it, but oftentimes you still have someone testifying to that standard that I just kind of walked you through.

But I believe that for this case, these pieces of evidence were stipulated to by both sides.

Good catch.

And yeah, it's not the most common way of bringing in evidence, but it is one that is definitely used and allowed within the court system.

All right, let's take a listen to our next caller.

Hi, Brian.

This is Jen from San Diego, California.

I have a question about Diddy's defense.

So his lawyers didn't call any witnesses.

Can that be used later during appeals so that they could argue he didn't get a fair defense?

Thanks.

Appreciate your time.

Thanks.

Bye.

Thanks for the question, Jen from San Diego.

What you're describing is what's called ineffective assistance of counsel.

And yes, that is one,

probably one of the more common appeals when your attorney doesn't do something appropriate or makes a mistake of law or whatever it may be.

And so Sean Combs could have an appeal for that.

But it's unlikely in this sense, because while a defendant has many rights in a case, the right to take a plea, the right whether or not to testify, the style and the manner in which a case is argued, according to at least the case law that I know of in the Supreme Court and the Second Circuit, as well as the SDNY, which would cover this case,

that's all on the defense attorney.

If I want to argue that the government hasn't proven their case and we don't need to put on any witnesses, that's well within my purview as an attorney.

And so, while Sean Combs could raise that argument, it's unlikely to be a successful one just based on the roles in which we are allowed to have as attorneys.

If there's a damning piece of evidence that the defense attorneys chose not to use, and there's no reasonable explanation as to why it it was not brought in, then, yes, Sean Cohns may have a stronger argument as to ineffective assistance of counsel for not putting on a defense in that sense.

But even still, it's a very high bar for a defendant to achieve in saying that an attorney should have done something rather than what they did in order to get a successful appeal.

Hi, this is Chandra from Oklahoma.

And my question is: if a mistrial is granted, can Diddy be prosecuted again I've seen Karen Reed case and you know it was declared a mistrial I believe the first time and then she was retried again is that possible for Diddy thanks so much love the podcast Shandra from Oklahoma thank you for calling in I want to say no it's not possible and that's just me not wanting to have to do this trial again but I have to answer that yes it is possible it is very possible if Sean Combs receives a mistrial mistrial, whether it is for all five counts, or probably more importantly, for the top charges, say, for example, he's found guilty of transportation to engage in prostitution and there is a mistrial on the sex trafficking or RICO conspiracy, then the government would have the opportunity to decide whether or not they want to retry Sean Combs.

Now, if there's a mistrial as to all five counts, more likely than not, the government will say, yes, let's try him again.

If he's found guilty of only the lesser charges, the transportation charges and not the top three,

I would imagine they'd want to retry him again.

But if he's found guilty, for example, of the racketeering conspiracy and not any of the other charges, that's when it becomes a big question mark.

Because for the racketeering conspiracy, he can face life in prison and say he gets life.

Say he gets 20 years, whatever it may be.

Then it becomes a calculus of, does it make sense to use all these resources?

Does it make sense to have all these alleged victims testify again to simply have the same, if not less, jail time against him?

It only really makes sense to retry them, similar to the example that you gave of the case that you told us about, if the person either has a complete mistrial or there is a mistrial as to the more serious charges.

So, hoping that I'm not doing bad rap the case against Diddy part two.

It is possible, but let's hope the jury comes to a consensus.

We're on verdict watch right now in Bad Rap.

So as soon as there is a verdict, we'll be dropping the news into the feed.

Stay tuned.

If you have any questions about the case for me, leave a voicemail at 929-388-1249.

If you appreciate this coverage, please share it and give us a rating on Apple Podcasts or Spotify.

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