The End of the Diddy case, and Possibly the

End of the “#MeToo” Movement As Well

            Well, we have gotten to the end of the Diddy case, and he was found “not guilty” of Racketeering, the most serious charge on the Indictment. He was convicted of other charges, but his expected sentence has fallen precipitously with the acquittal of Racketeering. What does this mean? It is sometimes inappropriate to place too much weight on the verdict of a single jury[1], but it is also important to take a look at what the jury said and to learn lessons from the verdict.

[1] In my career, I have tried hundreds of jury trials, and there have been times when I lost cases I thought there was no way I could lose and won cases that I thought there was no way I could win. I have become convinced that there is something inherently important in jury service, and jurors, in my experience, strive to come to the correct result. It seems to me that the jury in Seam Combs’ case did an excellent job in resolving complex issues of law and fact.

            One of the first questions that arises concerns the “Me Too Movement”. This Movement began in the 2000s but gained significance in 2017 when actress, Alyssa Milano, began encouraging people to use “#MeToo” on Twitter. After that it seemed to erupt in the social consciousness of the American public with nearly every politician and social media influencer joining the movement. Even Andrew Cuomo, the former Governor of New York, stated that it was “time to really change things” in terms of stopping sexual harassment before he resigned as Governor for sexual harassment. Perhaps sensing that the #MeToo Movement had taken things too far, he then ran for Mayor of New York.

            There are a couple of self-evident truths that we should try to remember. First, for too long, men were able to use their superior power at the nation’s companies and businesses to pressure women into doing things they did not want to do. Second, some women voluntarily engaged in sexual activities with these men and benefitted from it. Third, not every woman who claimed to be a victim of sexual abuse or harassment was, in fact, a victim of sexual abuse or harassment. Amber Heard spectacularly lost a defamation case after accusing Johnny Depp of sexually abusing her. Obviously, the jury had a problem with her testimony as well.

            But does this mean the #MeToo movement is dead?

A Closer Look at the #MeToo Movement

            The objective of the #MeToo Movement was to raise awareness of sexual abuse and harassment at the workplace as well as in schools and elsewhere. Without question, young women have been forced into compromising positions for decades with very little recourse. Now, a woman’s claims of rape are almost taken as an article of faith by the authorities, and even the most bizarre behavior by a female victim is excused. The law and the rules of evidence have been changed to make it easier to convict men accused of sexual assault.

            But it was not always that way. When I first became a prosecutor in the 1980s, an accusation of sexual assault would precipitate an investigation into the alleged victim’s sexual background and behavior, and in many cases, prosecutors would not bring cases against prominent members of the community if there was not solid evidence backing up the story. Often-times, police and prosecutors would refer to a sexual assault as a “mistake”, something best left for a suspect to deal with in his own family circumstances. Sometimes even after a hard-fought conviction, judges would impose lenient sentences.[2]

[2] In one case I prosecuted in state court, after a physician was convicted of engaging in sexual intercourse with a twelve-year-old neighbor girl, the Judge sentenced him to probation.

            The reasons for this sometimes too lenient approach to sexual assault cases did not stem from corruption within the government. The fact was, too often, these cases were too hard to prove. As a Judge Advocate in the Navy, we aggressively prosecuted sexual assault cases, including sexual assault cases against children. But these cases were difficult. In most case, you would have a young man with no criminal record meet a young woman with no criminal record in an enlisted club or a civilian bar. There would be a lot of alcohol consumed, but according to all of the witnesses, they seemed to be enjoying each other, and they left together. In the best cases, the alleged victim would report the assault the next day. The man would say that everything that happened was consensual, and the woman would say it was not.

            And those were the best cases. Sometimes, the woman would not report the attack for a week or a month or several months or sometimes a year or more. From an investigative standpoint, this made it more difficult to find witnesses and confirm or disprove one person’s story or another. But even the better cases were difficult. Without any corroboration, convictions were difficult.

            Yet, there were real predators out there, men who preyed upon one woman after the next, often taking advantage of a woman’s inability to prove her allegations. I think it was these misogynists that I believe the #MeToo Movement sought to target. And, through a lot of hard work, many of the barriers that protected these criminals began to fall, and as prosecutors became better trained and trauma-informed, they began to put together stronger cases, and more and more people were convicted. Powerful people like Harvey Weinstein, Bill Cosby,[3] and R. Kelly were convicted and sentenced to decades in prison. And so the movement was successful.

[3] Bill Cosby’s conviction was reversed by the Pennsylvania Supreme Court, and he was subsequently released from prison.

But Not Everyone who says They were the Victim of a Crime was, in fact, a victim of a Crime

            One of the most fascinating aspects of the practice of law is the “truth”. When I was a young lawyer, I would commonly hear counsel, especially prosecutors, refer to trials as a “search for the truth”. What fascinates me is that in many trials, multiple people will tell different, inconsistent stories, only one of which can be true. Yet, they lie with impunity, and, at the end of the case, it is left for a jury to determine what is true and what is not. As lawyers, we look for inconsistencies in what was said, and we try to prove that one witness or another is lying. But we as lawyers have no special powers to make anyone tell the truth.

            This is particularly true in sexual assault cases. On one hand, there is a victim who receives tons of emotional support and is carefully supported through direct and cross examination. By the time the alleged victim testifies, she has been questioned time and again about what happened, and it is unlikely that the defense attorney who cross-examines her is going to ask anything that has not been asked before. Is the victim told to lie? I do not believe so; however, every potentially problematic or embarrassing detail of the case has been reviewed with her over and over again, and, eventually, she comes up with a comfortable answer.

            The same is true for most defendants, although, unlike the alleged victim, the defendant does not have to testify if he does not want to. If a victim performs poorly during cross-examination, then a defendant may decide not to testify.

            The thing that most people forget, however, is that every case is different. In some cases, the victim lies. In some cases, the defendant lies. No matter who is lying, however, it is for the attorneys to question the witnesses to show potential lies, and it is the job of the jury to determine who has lied and who has told the truth. Any lawyer who thinks that the victim always lies or the defendant always lies does a great disservice to their client and to the interest of justice as a whole.

            The problem all of us face in the criminal justice system is knowing who is lying and who is telling the truth. And that was the issue in the Diddy case. To convict Diddy of Racketeering, the government needed to prove that people were pressured or forced into participating in the “freak offs” that Combs orchestrated.[4] Ventura testified that she was forced into these acts, which would have been sufficient to convict Diddy if the jury believed the testimony.[5] The defense did a masterful job, however, of undermining this element of the Racketeering charge.

[4] These “freak offs” that Cassie Ventura described were basically drug-fueled sex sessions that lasted from 36 to 72 hours. According to Ventura, she was forced to engage in demeaning sexual performances and, when they were over, she suffered from the aftereffects of the drugs, dehydration and sleep deprivation. [5] The government also called a psychologist to talk about the effect an abusive relationship has on a victim, apparently to explain Ventura’s conduct when she was Diddy’s girlfriend. This seems to be tactics prosecutors are using more often in cases of sexual assault. Many jurors would expect someone who is being abused to attempt to escape, but Ventura stayed with her abuser.

            There were a couple of facts that undermined Ventura’s testimony. The first was a series of texts she sent to Diddy contemporaneously with her involvement with the freak offs. In these texts she talked about how much she enjoyed the drug-fuel sex with commercial sex workers. This testimony undermined her trial testimony, and it no doubt left the jury wondering about the truth of her trial testimony.

            The jury also heard of the massive payments Ventura was receiving while she was Diddy’s girlfriend—$10,000 per month for rent plus an allowance. When she separated from Diddy, she sued him and received a $20 million settlement. There were facts the government could point to: the relationship was violent. He struck Ventura on film at a hotel. But these facts were not the same as “force” in the Racketeering instruction, and when it came to freak offs, the text messages Ventura sent at the time undercut the argument that she only engaged in these sexual acts because she was forced to do so.

            Jury deliberations are secret, but it appears that the jury concluded that Ventura was lying, and once they came to that conclusion, they found Diddy “not guilty” of racketeering. However, Racketeering was not the only charge on the Indictment. Diddy was convicted of two counts of the Mann Act, Transportation of Prostitutes across Interstate Lines. These are serious felonies, but much less serious than Racketeering. Diddy can expect a significant sentence but one that is far less serious than the life sentence he might have gotten for Racketeering.

The Role of the Jury

            One aspect of the criminal justice system that the Diddy case does highlight is the significant role of the jury in every case. The Sixth Amendment to the U.S. Constitution guarantees every criminal defendant the right to a trial by jury. In the federal system, this means twelve random members of the community, chosen at random, who will hear the case and decide innocence or guilt. If someone is found not guilty of a charge, that decision is final. The government has no ability to appeal a jury verdict no matter how wrong it might have been. That one aspect of American jurisprudence is unique in the world, and it can be the difference between a life behind bars or death and freedom.

            The role of a criminal defense lawyer is to investigate every aspect of the government’s case and to develop a theory of defense. Diddy’s lawyers did an excellent job performing this role. Just as importantly, however, is the need to be an effective trial lawyer before a jury. This involves an innate ability to connect with a jury, to make sure that the jury is paying attention to the defense. It also involves the ability to drive these points home in a closing argument. It is a skill that few trial attorneys have, but it is a skill that Diddy’s lawyers had and used to devastating effect against the government.

Conclusion

            To answer the question posed above, no, the #MeToo Movement is not dead, but not everyone seeking to identify with the movement is going to get a free pass because they are female. The world is more sensitive to abuse, and abusers are now frequently finding themselves before both criminal and civil courts. I believe that the real victims of abuse will find justice in most cases, and those who lie or stretch the facts will not. Every case is different with different people and different facts. There is not and should not be a standard answer to every case, unless that answer is “it depends”.

            The case of United States v. Sean Combs is over. At least the dramatic aspects of it are over. There is still sentencing and an appeal, but they will not be as dramatic as the trial. Remember, however, that trial advocacy, and effective trial advocacy, are important characteristics of any defense attorney, and they are a matter that should always be reviewed by anyone accused of a crime who is looking for the right defense attorney.

            If you or a friend find yourselves in need of a defense attorney, give us a call. We have tried hundreds of cases and achieved many “not guilty” verdicts. We understand trial strategy, and we know how to connect with a jury.