The Diddy Trial So Far. . . .

Well, we are one week into the Sean “Diddy” Combs trial, and it is time to check and see what has happened thus far. The short answer is a good bit, but not much.

As you know, Diddy faces an array of sex trafficking charges centered upon the alleged abuse of women. These charges stem from the testimony of several women who claim they were abused and trafficked by Diddy. The allegations are sensational, but probably not as gripping as a nine-year-old video of Diddy punching his girlfriend, Cassie Ventura, knocking her to the ground and then kicking her. Just as an aside, there is an important life lesson to be learned: if you’re going to beat the crap out of someone, do not do it in front of a video camera.

It will be interesting to see how Diddy’s counsel deals with the video. He may just say that he did it, and he is sorry that he did it. However, he is not charged with assault in California; he is charged with racketeering in New York. There may be good reason to keep the entire video out of evidence as irrelevant, but we will have to wait to see how that issue is handled during the trial.

From a legal standpoint in the current trial, we have what the media calls a wide-ranging, five count indictment. It alleges racketeering, sex trafficking, and transportation to engage in prostitution. So, on Monday, May 5^th, the trial began with jury selection, and, at the end of the week, jury selection was still ongoing.

Jury Selection.

Jury selection is one of the most important but least talked about aspects of any criminal trial. During jury selection, twelve members of the “community”, which generally means a federal district in federal court or a county in state court, are selected as jurors. The Clerk of Court begins the process by summoning hundreds of people in a high-profile case to hear the evidence and render a decision.

These potential jurors normally fill out a questionnaire before coming to court, and once they arrive at court, they are questioned by at least the judge and often by attorneys for each side, to determine whether each juror can be fair and impartial—at least that is what lawyers tell the prospective jurors. What the lawyers really want, however, are jurors who are aligned with their side of the case or who hate the opposite side.

In Diddy’s case, the U.S. District Court for the Southern District of New York had summoned jurors from throughout the district (which is mainly Manhattan) to hear the case. Each prospective juror has filled out a questionnaire, and now the jurors are being questioned one by one to find any prejudices or biases. At the end of the questioning, the prospective juror will either be “struck for cause” or remain in the jury pool. Once a sufficient number of jurors have been “qualified”, questioning will stop, and the attorneys for the government and for Diddy will use “preemptory” challenges to get down to twelve plus the alternates.

I used a couple of phrases I should explain. The first is “challenge for cause”. When a juror is challenged for cause, it means that one party is asserting the juror cannot be fair, and the judge will decide ultimately whether a juror can, in fact, be fair.

Some people may ask how difficult it will be to find twelve people unfamiliar with Diddy, but that is the wrong question. The question is not “do you know the defendant” or “do you think sex trafficking is OK”. Instead, the focus is upon fairness, so regardless of what a juror may or may not know, the question will be, can the juror be fair. Almost all of the jurors will say they could be fair. If I were on Diddy’s jury, I could be fair.

But the process can be long as each side delves into the nuances of every answer to determine whether it could lead to a discovery of bias or prejudice with each answer potentially generating more questions. For example, if a potential juror were to say he knew the defendant, then follow up questions might include:

• How do you know the defendant?
• How long have you known the defendant?
• What has your relationship with the defendant been?
• Have you talked to the defendant about this matter?
•  “Do you have an opinion as to the defendant’s character?

There could be an additional twenty or thirty questions asked depending on the responses. If, at the end of the questioning, the potential juror has only seen Diddy once and has no other opinions about the case, a challenge for cause would most likely be denied. If the juror were Diddy’s cousin who rode with him during some of the trips alleged in the indictment, a challenge for cause would likely be granted. If a juror has been wrongfully arrested by the police and believes the police to be inherently dishonest, then the juror would likely be struck for cause. Only when a juror has either been admitted or stricken for cause will jury selection move to the next juror.

Only when a sufficient number of jurors to create the final group for preemptory challenges to be exercised remain will the questioning of jurors stop.

Then preemptory challenges will begin. A sheet with the prospective jurors, usually identified by number, will be passed back and forth. First the government will strike a juror, and then the sheet will be passed to the defense to strike a juror. Once the parties are down to twelve jurors plus alternates, the jury has been picked.

Now turning to Diddy’s case, what happened? Well, the parties spent the entire week questioning jurors, but more jurors are still required. Therefore, jury selection will continue on May 12^th. Within another day or two, a jury should be picked. That is what happened in court this week.

The only limitation on preemptory challenges is the Batson objection based upon the Supreme Court case of Batson v. Kentucky. That case prevents the government from excluding jurors based upon race, sex, religion, etc. For example, if a prosecutor were to strike African American jurors (Diddy is African American), the defense could make a Batson challenge, and the government would have to state a non-discriminatory reason for challenging the juror.

Parties do not Pick Jurors.

One of the common misunderstandings I find in jury selection comes from the term “jury selection” itself. The defendant does not get to pick jurors; he or she can only disqualify jurors that are too pro government. If a juror seems like an excellent juror for the defense, the government will most likely strike that juror.

What Else Happened?

Nothing. Let me repeat that so it is clear: nothing else happened.

There are news stories talking about “Victim #3” and Cassie Ventura’s pregnancy, but these stories are mere attempts to create exciting news where nothing else exists. At this point in time, the government cannot find one of its witnesses, and if it cannot produce the witness at court, it will shorten the trial and perhaps one count of the indictment will be dismissed. However, the government has other witnesses, and the failure to produce a single witness will ultimately not have an impact on Diddy’s conviction or the sentence he is likely to receive.

And Cassie Ventura’s pregnancy? I congratulate her on the upcoming birth of her child, but it has nothing to do with the case. I read that she is requesting a break every ninety minutes during her testimony, which is close to average. A normal trial day starts around 9:00 am and goes until about 10:30 am before the Court takes a normal break. Trial recommences after about fifteen minutes and then stops for a lunch break between noon and 12:30 pm. It normally recommences at about 1:30 pm and continues until about 3:00 pm. After another fifteen-minute break, the trial will continue until between 4:15 and 5:00 pm. Ms. Ventura’s request for a break every ninety minutes would therefore be reasonable.

However, at this point, no evidence has been presented, and no arguments have been made. Once we start hearing testimony, we will be in a better position to assess trial strategies and the strength of the government’s case. Until then, we will just have to wait.

Stay tuned.