The Trial: Zero Witnesses for the Defense

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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, Zero Witnesses for the Defense.

It's hard to believe that the jury in USA v.

Sean Combs could start deliberations by the end of the week.

Here's what we know about this week.

Monday morning started with testimony from a Homeland Security Investigation special agent.

He's been walking the jury through reams of travel records, hotel invoices, and money transfers that prosecutors hope will convince the jury Sean Combs and his associates trafficked his ex-girlfriend, the witness we know as Jane.

The prosecution expects the special agent to remain on the stand through part of Tuesday, and then they'll rest their case.

Now, the defense has been actively cutting its list of witnesses.

We don't know who the defense has cut or why, but last week the defense said they anticipated spending two to five days to make their case.

But Monday morning they said they're not planning to call any witnesses.

Zero.

The defense said they'll introduce some evidence Tuesday, but that's it.

This also answers a greater question I know a lot of you have been asking.

Will Diddy take the stand?

Seems safe to say at this point, no, no, he won't.

So, let's say the Homeland Security Investigation Agent wraps Tuesday.

The prosecution arrests, the defense makes a motion for dismissal, and then the defense uses the rest of the day to introduce its evidence, and then it also rests.

Here's what comes next.

Judge Supermanian will meet with the attorneys from both sides on Wednesday.

They'll discuss the wording of the instructions for the jury.

If all goes to plan, plan, the judge said closing arguments would happen on Thursday.

The jury will actually get its instructions and then, can you believe it?

Deliberations.

In this scenario, Diddy's fate would be in the hands of the jury by Friday.

They will decide if Sean Combs is guilty or not guilty of the five counts he's facing.

Two counts of sex trafficking for Cassie and Jane.

Two counts of transportation to engage in prostitution, again for Cassie and Jane, and one count of racketeering conspiracy.

They'll deliberate for as long as it takes.

In the meantime, let's answer some more of your questions.

We have some great ones today.

Hi, this is Nancy from Connecticut.

And my question is, is there any limit as to how many lawyers Sean Combs can have in court?

Or is it how many he can afford?

Thanks.

Nancy from Connecticut, thank you for the question.

i guess as much as the room can fit and yeah i get it sean combs does have a lot of attorneys i think you've kind of hit the nail on the head there it's really about how much you can afford but i will say this attorneys like doctors they all have their own specialties right Just at the top of my head, Sean Combs has about eight attorneys, or at least eight attorneys who have stood up and done some sort of litigation, arguing, cross-examining.

He could have other attorneys who are doing other things behind the scenes.

So Alexandra Shapiro, for example, she specializes in appellate law.

So if Sean Combs is convicted, she would be doing the appeals.

She's also making sure that during the trial case, they are preserving or making sure that the issues that could come up on appeal are raised during the trial.

While you have other attorneys who may specialize in sex trauma or cross-examining a certain issue, or you want an attorney who's focused on some area of law or some area of evidence.

So it's really like a basketball team.

One's a shooting guard, one's a center, but they're all working together.

But yeah, Sean Combs does have a lot of attorneys.

So that's fair.

All right.

Next question.

Hey, it's Maura from Long Island.

And I was just wondering, how

can Sean Combs be paying

for somebody who's a witness?

How could he be paying?

for their lawyers.

Thanks.

So I think what what you're referring to here, Maura, is how the witness, known to the court as Jane, testified that Sean Combs is paying for her attorney.

And it's a head scratcher.

I think for the most part, the reason why it's so confusing is because how many people can afford their own attorneys, pay for a witness's attorneys, pay for a witness's rent,

and still mount a legal defense?

And so it's a very rare, rare situation.

I think that's why it's somewhat confusing.

But theoretically and actually, as we're seeing, it can happen.

So legally, there is a tightrope to be walked here that does allow it.

You have your duty to your client regardless of who's paying the bills.

And you'd have that conversation with the person who's paying the bills.

So Jane's attorneys would turn to Sean Combs and say, regardless of who's paying, my ethical duty is to Jane.

And the conversation we had with Jane to the effect of, you understand who's paying for for me.

Are you comfortable with this?

Do you understand the ethical obligation that I have to you?

That I always have your interests at heart.

If you're okay with this, we can go forward.

The judge themselves may have some level of inquiry as well to make sure that Jane is comfortable with that.

It could theoretically work and it seems to be working here, but it is very strange.

I would agree with you there.

The other thing when it comes to Sean Combs that we found out during the trial is that he's still paying for Jane's rent.

I can imagine, and again, I am not an attorney on the defense team for Sean Combs, but I can only say in terms of my experience and what I would do in this situation, which I think is somewhat close to what these attorneys are doing.

If Sean Combs came to me and said, I'm still paying for the rent of this person who is expected to testify against me, what should I do?

I can see a world where the attorneys would say, keep paying for it.

Because if you stop paying for it, that would look far worse than if you you are continuing to pay for it because what the government is saying is that you used money of that exact house that you're still paying for to keep her in the cycle of sex trafficking as a part of your criminal enterprise for hotel nights wild king nights freak offs whatever you want to call them and so if you cut her off that would look worse than if you are continuing to pay for her bills so don't stop So I think that might be the situation in which we're in.

I would say this.

It's better to look awkward than it is to look criminal.

I look awkward a lot, but never criminal.

And I think most people would prefer to do that.

Hey, Brian, my name is Mike.

I'm calling from Washington State.

I had a question.

Because of the replacement of the juror, I think juror number six, does that in any way like help the defense?

Can they come back on appeal, or is this just part of the game?

Mike from Washington State.

I like the question.

And the answer, unfortunately, is maybe.

When it comes to appeals, sometimes the strongest arguments or also the most common ones are mistake of law or mistake of fact.

Here, you can make the argument that the judge erred or made a mistake based on whatever legal standard they use in replacing this juror.

You can also make the argument that the facts that were elicited through the inquiry of this juror led to the incorrect conclusion.

And so those are kind of like two different schools of thought as to why that juror was eliminated.

And if an appellate judge agrees with Sean Combs' team and it was incorrect to have that person removed and they could show that there was some sort of materiality, as in like it affected the outcome of the trial, then yeah, that could be an appellate issue.

It could come back on reversal.

We could be back here all over again for bad rap, the case against Diddy Part 2.

There could be a retrial.

I don't think that's going to be an issue here, but I think Alexandra Sapiro would definitely find an argument to be made.

So, yeah, good call on that.

All right, you know what?

Let's keep going.

I think we got a penny for my next thought.

Hey, Brian, this is Penny from Kernersville, North Carolina.

And my question bounces back to Cassie a little bit.

Now that Cassie has testified under oath, and it's a matter of record about the alleged events that transpired between she and Diddy, is she now free to speak about these events?

For example, if she wanted to write a book or give an interview, I know there was a settlement with her lawsuit, and I'm supposing an NDA, but since it's on the record now, does that affect that at all?

Or would the terms of that settlement still apply?

Thanks so much.

Great podcast.

Penny, I know you don't hear it, but I'm doing a long pause right now because I'm thinking.

So I'm going to top this one out and see if this makes sense.

So we don't know what the civil lawsuit said in regards to what the parties can do.

what they can speak about, what they cannot speak about, if there's an NDA or and what the requirements or the outline of that NDA might be.

But I know that that government subpoena would not open the floodgates, so to speak, that she could talk wherever and whenever and however she wants.

So I'm inclined to say no,

that she may be able to point to what she said while on the stand as an open and public record, but I don't believe that she'd be able to go further and write, for example, like you've given, a book or talk about it openly, because I think the NDA in the civil lawsuit would still control what she says when she is not on the stand, when she is not under subpoena by the government.

But I like what your head's at because that's that one's definitely making me think.

You have a lot more questions about witnesses and how the court can protect their identities.

More after the break.

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We're back.

And a lot of you are intrigued by the anonymous witnesses.

How does that work?

And anonymous from whom?

Hi, Brian.

Love the podcast.

My name is Leslie.

I'm calling from Toronto, Canada.

My question is about

some of the witnesses who we don't know their true identities.

They're being identified as Jane Doe, for example, or Jane.

Media is allowed in there.

So do they have to sign

like an NDA when they go in to not disclose Jane's identity?

How do they keep Jane's identity unknown, I guess, is my question, especially with social media.

And yeah, I just figure that would be really hard.

Thanks so much.

Bye.

Leslie from Toronto, I'm going to answer as Brian from Etobicoke.

Thank you for calling from my hometown.

I love it.

So one, we in the media do not sign an NDA to not disclose Jane's identity.

For the most part, it's pretty much the honor code.

While also understanding if we do release Jane's identity and that is discovered, there are potential repercussions from the court, court, not only onto us, but also if you work for ABC, Fox, NBC, the rest of the kind of large media outlets, of course, you'll also have your employer coming down on you.

You don't, one, personally want to be kicked out of the court and two, you don't want your employer to be kicked out of the court.

But I would say more so than ever, we have a lot of content creators that are in the court, that are sitting in many of what would be considered the public seats in the court, but they come out and they're on their phones, on TikTok doing live streaming, and it's an amazing thing to watch.

They too are kind of also on this kind of honor code because they don't want to be kicked out either.

They don't want, like we've seen where Judge Submanian reprimanded the attorneys as saying that the gag order was violated and information got leaked.

And so it really is just.

Don't do it or you're going to get in trouble and you still want access to the court.

Thank you for calling from the six.

All right.

On to the next question.

Hi, Brian.

It's Jamie from Illinois, and I'm calling with a question about the public being able to sit in the overflow rooms.

Isn't it a concern that any citizen off the street could walk into the overflow room, recognize who the witness is, and blast it all over the internet or social media?

Just wondered if that's maybe something that is causing their identity to be leaked.

Thanks for answering my question.

Have a great day.

Jamie, thank you so much for the question.

And I also feel and understand your concern as well.

You're right.

And just to give the other listeners some understanding, when you go into the southern district of New York, there's a lot of security, right?

When you come in, you go through metal detectors, similar like if you're going through TSA or flying.

If you have any electronics, you have to give them up to the marshals.

They give you like a little metal coin with a number on it.

You keep that.

So you're not allowed headphones, smartwatches, phones, laptops, any kind of recording devices that might pick up information.

And to your point, Jamie, yeah, someone can just walk in, go to the overflow room, say, hey, I recognize Jay and walk out and blast that person's information.

The only way it's really being protected is everyone's on an honor code.

If you violate that honor code and violate the rules of the court, It's a federal court.

You can be held in contempt of court.

There are criminal and civil penalties that go along with it.

That's not something that I think anyone wants to get involved with.

There are cameras inside the court.

There are cameras as you walk in.

And so if it's discovered that you've leaked someone's information that you're not supposed to,

the feds are not the people you really want to mess with.

And I don't think, for lack of a better term, the juice is really worth the squeeze.

Like putting out someone's name,

you're not going to really get those millions of views that are maybe going to result in some dollars.

And then you've got to end up calling me to say, hey, Brian, can you represent me for this contempt of court?

And I will, but it's going to cost you even probably more.

So, yeah, it's just not worth the hassle.

And I think that's what's really stopping people from doing that.

But I hear your concerns, especially for those women in this case who are testifying.

Thanks for the question.

All right, next caller.

Hey, Brian, this is Chelsea from Birmingham, Alabama.

I was listening just a minute ago, and you mentioned people that are being named that the prosecution

may not have as witnesses.

Are the witnesses set in stone?

In other words, do they have to provide all of that information prior

to trial starting and it cannot change?

Or can they at the last minute say, hey, we want to subpoena this person.

We would like for them to testify to this and see what they say?

Can they do that?

Or do they have to stick with the witness list

and the participants testifying

that they provided at the very beginning of the trial before it even started?

Chelsea, that's an interesting question.

And unfortunately, like most legal questions, I have to say it depends.

Now, for the most part, especially the government has witnesses.

They have to provide the names of those potential witnesses.

And I say potential because it doesn't mean that they're actually going to take the stand.

The government can choose either for them not to take the stand or like we've seen in this case where alleged victim, I believe number three, never ended up making it to the stand because they could not get in contact with the alleged victim nor the attorney, things change.

But they do have to give notification as to who that person is and any discovery, which could be information or evidence in which that person could testify to, so the defense can mount a defense against that information.

And so before the trial starts, they should get a large swath of information about all potential witnesses.

Now, on a very, very rare circumstance, and the only hypothetical I can think of is this one.

Imagine throughout the trial, and this is why we have public and open trials, and it's something that Mark Ignifilo actually talked about on behalf of the defense.

Imagine during the trial, a witness takes the stand and says something happened, right?

And the public hears about it and someone says, you know what?

I was on that plane.

I was in that room i was in that hotel wherever it may be if that person comes forward and has credible information that no party knew about at the beginning of the trial and there's a good faith basis that either party would need or could use that information then the judge will evaluate the timing in which that person came forward the information in which they had

and the fact that through due diligence, either side could not have found this person to their own research or whatever it may be, then potentially, because there still might be some other hurdles, but potentially that person could be a last-minute witness that no one expected and just shows up and testifies.

So that's why I have to say it depends.

But that second part, a lot of hurdles you can imagine in terms of someone coming forward, credible, good faith basis, all of that.

So for the most part, they already know who the witnesses potentially could be, and they could scrap them based on whatever they feel.

But yeah, I guess there could be a last-minute witness.

And I guess we'll see if the defense has one.

That's it for this episode of Bad Rap: The Case Against Diddy.

Thanks for listening.

And if you're looking for even more daily coverage of the Diddy trial, you could check out Burden of Proof, The Case Against Diddy.

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