Stephen A. Smith is a New York Times Bestselling Author, Executive Producer, host of ESPN's First Take, and co-host of NBA Countdown.
Support the show: http://www.youtube.com/@stephenasmith
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:03):
Let's get to New York, where jury selection began today
in a federal sex trafficking and racketeering trial of Sean
Diddy Combs. Federal prosecutors alleged Combs used his power and
wealth to sexually abuse, chorus and exploit alleged victims for decades.
If convicted, Combs would be spending the rest of his
(00:24):
life in federal prison. Defense attorneys for Homes contend that
all of his sexual encounters were consensual, and have described
a music mogul as a swinger who invited third parties
into his bedroom. Last week, federal prosecutors offered Combs a
chance to plead guilty for a reduced sentence. He turned
(00:46):
down that offer. Joining us now, obviously to discuss the
trial is Elie Honing, legal analysts for CNN, who's been
on this show many times, one of our favorites. What's up, Ellie?
Speaker 2 (00:58):
How are you man?
Speaker 1 (00:58):
How's everything?
Speaker 2 (00:59):
Steve? This is going to be a fascinating trial.
Speaker 3 (01:02):
This is the courthouse I used to practice it, so
I can bring you inside the huddle on this one.
Speaker 1 (01:06):
Well, I can't wait for you to do that. First
things first, him turning down a plea deal for a
lesser charge. Is that something to be expected? Should that
be considered a surprise? What do you make of that?
Speaker 2 (01:19):
No, it's an interesting little bit of last minute gamesmanship here.
Speaker 3 (01:23):
It's not that uncommon for prosecutors to make an offer
on the eve of trial. Now, the big question is
what were they offering, right, It's one thing if they
were offering him twelve years. It's another thing if they
were offering him three years or something like that. The
fact that he said no, you know, I guess it
depends again on what the offer is.
Speaker 2 (01:37):
But he's dug in.
Speaker 3 (01:38):
Look, he appears to believe he's got a shot at
winning this trial. Otherwise he would have taken that plea
because the downside here, if he loses this trial, Stephen,
he's going to get fifteen years minimum and as you
said before, up to life. So Sean Combs and his
lawyer must have sat down and said, look, there's a
chance to get out of this for less. But but
they're comfortable rolling the dice. Those are very high consequence
(01:59):
dice to roll.
Speaker 1 (02:00):
Let's get to the jury selection, Ellie, which obviously started today.
How long should we expect this process to take place?
Speaker 2 (02:07):
So this is federal court.
Speaker 3 (02:08):
Federal jury selection is way quicker than state jury selection. Right,
We've seen state cases drag on for weeks and weeks
and weeks. I have had jury selected in multiple murder
cases in two days or so. Now we have the
complication in this case that everybody knows the defendant. Everyone
who comes in there as a perspective juror will have
(02:28):
at least heard something about Sean Combs, about Diddy.
Speaker 2 (02:31):
So that takes longer to wade through. I am certain we.
Speaker 3 (02:34):
Will have a jury by the end of the week.
If I had to guess, I would say we'll have
one by Wednesday. Federal court moves pretty quick when it
comes to jury selection.
Speaker 1 (02:40):
Given the charges federal prosecutor is levied against Didty, what
type of jury should his defense team want to see?
Speaker 2 (02:47):
Actually, so this is where the gamesmanship comes in.
Speaker 3 (02:50):
Stevid, I'll never forget something that when I was a
young prosecutor, a veteran defenselaer who've been practicing forty fifty years,
said to be something like jury selection isn't just a
big deal.
Speaker 2 (02:59):
It's the whole ball game. I mean, these are the
people who decide the case.
Speaker 3 (03:03):
Now, let's think about this from the defense side, Like
you said, your Shawn Combs or Shawn Colmmes's lawyer, what
are you worried about here? To me, it's pretty obvious
you want to avoid anyone who a knows about this case.
Mostly everyone does and be just has their mind made up,
has already come to.
Speaker 2 (03:19):
Some sort of judgment.
Speaker 3 (03:20):
There will be many many questions asked of the jurors,
the potential jurors. Have you heard about this case, have
you formed any opinions? Could you still consider the evidence fairly?
But look, the fact of the matter is this case
has gotten an enormous amount of publicity. Shawn Colmbs since
the indictment came down, has been the subject of all
sorts of criticism, of jokes in the media, And I
would be looking out for people who already had their
(03:41):
minds made up against him and could not come in
there and judge the case fairly and im partially. But
the catch, though, Stephen, is a lot of people will say, oh, yeah,
I could be fair and impartial. I could put aside
everything I've heard. But this is where your gut instinct
comes in. As a lawyer, I tried a case against
Jehan Gotti junior, right, everyone had heard of the guy
of a lot of jurors said, oh.
Speaker 2 (04:00):
I could be fair.
Speaker 3 (04:01):
But then it gets into that gun like do I
believe him? Am I sensing something weird that I don't
think this person could be impartial? So defense is looking
for people who've already convicted the guy.
Speaker 1 (04:10):
But defense is also looking for people who don't, who
know little to nothing about the case. I would imagine
how plausible is that, in considering how high profile he is,
that people don't have four goinge conclusions because they're completely
oblivious to what's going on.
Speaker 3 (04:26):
Right, So you'd be amazed that the types of answers
you get from these potential jurors who sometimes like have
barely heard of things. I think everyone's going to have
to say they've heard of the guy. I imagine ninety
percent of the people will well, I know he was
in some trouble. But I actually think you're right. I
don't think that many people are going to say, well,
I know he's charged with racketeering and sex trafficking and
all that. I think they're going to just basically come
(04:47):
down to, well, I know he got arrested, I know
he's in trouble I know it has something to do
with sex and coercion and that kind of thing. So
that's going to be a key question. How much do
you know about this case? How much do you know
about the charges? Have you read the indictment?
Speaker 2 (04:58):
Have you seen this story covered on CNN on Steven A's.
Speaker 3 (05:01):
Show, And you're just it's a guessing game, right, It
really does come down to your instinct. But yeah, if
I'm the defense I would want someone who knows less
about the case. But on the other hand, if you
get someone who's like, I've never heard of this guy,
I've never heard of the case, they can start wondering like,
is there something off about this juror maybe I don't
want that?
Speaker 2 (05:18):
What about the defense team?
Speaker 1 (05:19):
From this perspective they've already put out They've described a
music mogul as a swinger who invited third parties into
his bedroom. I'm like, is that a detail that you
wanted to just let out as a defense team? I
don't know what to make of that?
Speaker 2 (05:34):
What say you.
Speaker 3 (05:35):
Third parties and fourth parties and fifth parties and sixth parties? Apparently,
but that is going to be the defense And look,
I know it's maybe not the greatest pr move in
the world. But it's a viable defense, and I think
this will be the core of the defense. It'll boil
down to, maybe he's a freak, ladies and gentlemen of
the jury, but there's no federal crime of being a freak.
There's no federal crime of having these sort of aggressive,
(05:57):
unusual sexual appetites going hand in hand with that. That's
not going to be enough on its own, because you're
going to have victims and witnesses testifying. You say, he
coerced me, he threatened me, he assaulted me, and so
they're going to have to combine that maybe he's a swinger,
but that's not a crime with an attack on.
Speaker 2 (06:15):
The victims in the courtroom, they're.
Speaker 3 (06:16):
Going to have to suggest that these victims, these witnesses
have bad motives, they're looking for a payday.
Speaker 2 (06:22):
They made up stories about him.
Speaker 3 (06:23):
It became a pile on and they all sort of
picked up on each other's stories. And that's a common
defense you see in these sort of multi victim, multi
witness cases. So I think that's exactly what the defense
is going to be.
Speaker 1 (06:33):
Says the last time you were on here weeks ago.
Have there been anything. Has there been anything additional as
it pertains to information or findings that have transpired over
the last few weeks that you find potentially alarming or
potentially beneficial to ditty to the Diddy case itself.
Speaker 3 (06:53):
Yeah, I've actually been surprised the other way, Steven, which
is I thought there would be more victims that are
charged in the indictment. I thought there would be more
expanded charges. Now prosecutors have tweaked this indictment up a
little bit. They now reference victim one and victim two
in the indictment. Apparently there is going to be a
third victim as well. But given the number of civil suits,
the dozens of civil suits, I thought that at some
(07:15):
point the prosecution would.
Speaker 2 (07:17):
Either be a adding more and more.
Speaker 3 (07:19):
Victims than they did and be adding more and more defendants.
This is a very unusual case in that the charge
is racketeering, which means in this case they're charging Shankon's
a thing at the head running a criminal enterprise, yet
he's the only defendant.
Speaker 2 (07:33):
Now you can do that.
Speaker 3 (07:34):
R Kelly is another example of a guy who was
a one man racketeering enterprise. But look, I used to
charge racketeering cases I used to teach the course on
racketeering within DJ.
Speaker 2 (07:42):
My racketeering cases were mob cases.
Speaker 3 (07:44):
There's twenty five guys, twenty eight guys, fifteen guys. So
it's unusual and I think a bit surprising to me
that the original indictment has more or less remained intact.
Speaker 2 (07:54):
I would have expected.
Speaker 3 (07:55):
I think, I said to you Steve and a back
at the time, I thought that there was going to
be bigger expansions of this indictment than their work.
Speaker 1 (08:01):
And because there aren't, is that an argument the defense
makes in his favor? Where the other Where are the
other defendants? How come he's the only guy that's really
being prosecuted here? Why is it that you haven't been
able to find anybody else that's you're accusing him of racketeering?
Speaker 2 (08:15):
Oh you bet.
Speaker 3 (08:15):
They're going to make some variation of that argument. They're
going to go, oh, my goodness, folks, a racketeering enterprise.
There must be a lot of people. Well, folks, guess
what they say, he's the whole thing. How about all
these other guys, how about these bodyguards, how about these handlers,
how about these enablers. Now some of them will testify,
some of them have been given deals, they've been given immunity,
or they've been given non prosecution agreements. So some of
(08:37):
these people are going to get on the stand and say, yes,
I was part of this, Yes I helped him out,
but in exchange for my testimony, I've been given a
free pass.
Speaker 2 (08:44):
Now you know what the counter to that is going
to be.
Speaker 3 (08:46):
They got a sweet deal because they're just telling prosecutors
whatever prosecutors want to hear.
Speaker 2 (08:51):
But it's not uncommon.
Speaker 3 (08:52):
I mean, I mean more cooperation deals that I could
even remember. So yeah, that's absolutely going to be a
dynamic at this trial. He's the only one. They say
this is a one man show. You shouldn't believe that,
members of the jury.
Speaker 1 (09:03):
What about the video Cassie Ventura, his ex girlfriend, where
he ran down the hallway half naked and dragged her
through it to the ground, kicked and all of that stuff.
We saw that video. First of all, we don't know.
I'd like to know whether you believe that's going to
be admissible in this court case Number one and number two,
the fact that she's agreed to testify against him according
(09:26):
to the reports, how damning do you believe there is
the potential for that to be.
Speaker 3 (09:30):
I think that video is the prosecution single most important
and most powerful piece of evidence. It will come in.
By the way, that was the subject of a pre
trial ruling. The judge said, yes, you may play the video.
Now the question is going to be what's the relevance,
what's the context around it. It appear that the prosecutors
are going to argue this was part of him threatening, forcing, coercing,
abusing this woman as part of his effort to traffick
(09:53):
her across state lines for sexual purposes. Apparently the defense
is going to be, no, this had nothing to do
with the sex trafficking, ring or coercion. This was a
fight they were having over infidelity. And you know, I
think Cassie will be Cassandra will be the most important
witness for the prosecution. But the attack on her is
going to be she's a liar, she's telling them what
(10:13):
they want to hear, she's looking to raise her own profile,
she's got a bad financial incentive, and so look, so
much of this just comes down to the jurors are
going to be sitting feet away from her.
Speaker 2 (10:23):
I mean, I've been in these courtrooms.
Speaker 3 (10:25):
They're going to be four feet away from her, and
so much of it is just going to come down
to how they assess her demeanor, what does she look like,
how does she deliver her answers? Is she credible? From
what I've seen of her in public, she seems quite
credible to me. But people don't always play the same
on the witness stand as they do in front of
a camera.
Speaker 1 (10:42):
What about the documentaries and stuff like that that have
been put out about him and some of the allegations
against them, and people essentially co signing on what he's
being accused of because they're highlighting his behavior or what
it was throughout these years. How much of an impact,
if at all, do you expect that to have.
Speaker 3 (11:02):
So prosecutors cannot obviously just play the documentaries or pieces
of the documentaries for the jurors, right that would be inadmissible. However,
if there's a witness on the stand who has previously
spoken in one of these documentaries, and there will be
many of those, everything they've said previously can be used
to cross examine them, to impeach them, as we say, so,
if a witness gets on the stand and says something
a little different than what he or she said in
(11:24):
a documentary or leaves out a detail or adds a
detail that they didn't say in the documentary, then that's
absolutely fair game for cross examination. And I assume in
this case, if the prosecutors are any good at their jobs,
and I'm sure they are, it's my former office, they
have not just whatever the documentaries are, but the raw
footage that came before it, Because a lot of times,
you know, you'll do a two hour interview and it'll
end up being twelve minutes on the documentary. So I
(11:46):
assure you both sides have watched that footage very carefully,
and it's all in play just the same if it
was prior testimony, you know, to a police officer in
front of a grand jury, it can be used.
Speaker 1 (11:56):
You've raved about your formal place of of occupation, Southern
District of New York, and what it brings to the
table in terms of.
Speaker 2 (12:03):
Its high conviction rate, et cetera, et cetera.
Speaker 1 (12:05):
You still feeling as confident in their case, considering their
reputation and what they bring to the table. You're still
feeling this confident with the whole diddy, with this whole
Did he matter against them?
Speaker 3 (12:20):
That's a great question. So I of course, you know,
look I came up through this office. I have a
reverence for it. But I certainly do not think the
SDNY is infallible. They've made a lot of missteps, including
most recently, I think, throwing out the Eric Adams case,
which I know a lot of the people there pushed
back and disagreed with, but that came from up above. No. Look,
I think the case is a sound case, looking at
(12:41):
the indictment. I think the hype around it, and maybe
the SDNY helped promote this hype got a little beyond
what actually.
Speaker 2 (12:48):
Ended up happening.
Speaker 3 (12:49):
But look, the odds are stacked against any criminal defendant
in that courthouse. You know, you'll see that conviction rates
are ninety eight percent. Throw those out because that includes
guilty please, which almost case plead guilty. There are no
reliable data on how many trials result in conviction, but
in my experience and just following that courthouse, seventy eighty
percent or so of all trials resulting conviction. I don't
(13:13):
think Shaw Colms is going to cut a sympathetic figure
here for the jury. I think they're going to hear
some horrible things about him. I think the witnesses are
going to present some devastating testimony. I think that video
that we talked about of the assault is really really
damaging evidence. So I would put it, you know, if
I had to make a picture, I would say seventy
five eighty percent that he gets convicted.
Speaker 1 (13:33):
Last question, is he better off or worse off now
than he was when he was first arrested as it
pertains to this case and how he's looking.
Speaker 3 (13:41):
Well, I think he's slightly better off in that it
hasn't been this explosion in the number of witnesses.
Speaker 2 (13:48):
But look, it could get a lot worse. I mean,
he was given that plea offer.
Speaker 3 (13:51):
Again we don't know what it was, but he was
given a chance to sort of hedge his bets and
mitigate his bottom line loss here and he chose not
to do it. And the way these trials work, it's
it's a flip of a coin. It's yes or no.
The jury can't come down and say, well, we want
to kind of convict him. But if some you know,
I mean, well, look they can split the verdict. I
guess they should say that they can convict them on
sun counts but not others. But man, if he gets
(14:12):
convicted on anything. In this case, he's looking at double
digits plus behind bars, so he's taken. Look, it's a
huge gamble. It's terrifying for anybody to be in that position.
You know, I've seen a lot of people go through it.
The odds are against him. He has a very good
defense team behind him, so anything can happen, but his
life is on the line.
Speaker 2 (14:32):
Here forgive me.
Speaker 1 (14:33):
I got one more question. I just thought about if
your case is that strong, if you're the Southern District
of New York and your case is that strong, why
offer him a plea?
Speaker 3 (14:42):
So it could be that they don't think that. They
could be that they're worried about some aspect of their case.
It could be they're worried about one of the witnesses
or the victims. It also could be Look, the reason
you offer a plea deal when you have a strong case,
especially on the eve of trial, is A you might
be worried about some aspect of your case, or B
you're just trying to again.
Speaker 2 (15:00):
Cap your risks.
Speaker 3 (15:01):
You know, you lock in a conviction, you move on
to sentence saying, and let's keep in mind there's always
a risk.
Speaker 2 (15:06):
Stephen A.
Speaker 3 (15:06):
Of what we call jury nullification, which means when the
jury or a single juror just says, I don't really
care what the evidence is. I'm gonna vote not guilty,
and all you need is want If you're the defense, right,
you need.
Speaker 2 (15:18):
All twelve jurors beyond a reasonable doubt to convict.
Speaker 3 (15:20):
So you get one person on that panel and says,
I don't know, I don't believe some of these victims,
or I feel bad for Shawncolms, I feel like he's
been railroad.
Speaker 2 (15:28):
Racial issues could come into.
Speaker 3 (15:29):
Play here if a black man sitting at the defense table,
so a celebrity, you know, a universally known guy. So
my fear going into this as the prosecutors would not
so much be of an acquittal. I don't think you're
gonna get twelve zero not guilty, but you never know.
In a high profile cases, cases hang and then that's
a win essentially for the defense. You can always retry
a hung jury, but it's a nightmare for prosecutors. So
(15:51):
it may have been they said, look, if we can
lock in a conviction, get x's the penalty, avoid the
time and expensive trial, and avoid the risk of a
hung jury, maybe they calculated that would have been worth it.
Speaker 1 (16:01):
This case is not gonna be televised or anything like that, right,
I mean cameras are not gonna be in the court,
loud in the court room or anything. Right, Is that correct?
Speaker 2 (16:06):
Right? Federal courts are dinosaurs.
Speaker 3 (16:08):
They refuse to allow not only cameras, but even live
audio feeds. Even the Supreme Court, by the way, it
gives us live audio feed now. But they are old fashioned.
I am on this soapbox, stephen A. They need to
let cameras in there. The Constitution says, public trial. Why
are we acting like it's eighteen forty show it? We
can all watch it. We should get to see it.
Speaker 1 (16:27):
Ellie Honing, senior legal analyst for CNN, one of the
best in the business. It'll be much watch television whenever
you're on. I can promise you that. Thank you, Ellie, Man,
I really appreciate it. Man, take care of yourself.
Speaker 2 (16:38):
Thanks to today. I appreciate it. Talk to you soon.
Let's get to New York, where jury selection began today
in a federal sex trafficking and racketeering trial of Sean
Diddy Combs. Federal prosecutors alleged Combs used his power and
wealth to sexually abuse, chorus and exploit alleged victims for decades.
If convicted, Combs would be spending the rest of his
(00:24):
life in federal prison. Defense attorneys for Homes contend that
all of his sexual encounters were consensual, and have described
a music mogul as a swinger who invited third parties
into his bedroom. Last week, federal prosecutors offered Combs a
chance to plead guilty for a reduced sentence. He turned
(00:46):
down that offer. Joining us now, obviously to discuss the
trial is Elie Honing, legal analysts for CNN, who's been
on this show many times, one of our favorites. What's up, Ellie?
Speaker 2 (00:58):
How are you man?
Speaker 1 (00:58):
How's everything?
Speaker 2 (00:59):
Steve? This is going to be a fascinating trial.
Speaker 3 (01:02):
This is the courthouse I used to practice it, so
I can bring you inside the huddle on this one.
Speaker 1 (01:06):
Well, I can't wait for you to do that. First
things first, him turning down a plea deal for a
lesser charge. Is that something to be expected? Should that
be considered a surprise? What do you make of that?
Speaker 2 (01:19):
No, it's an interesting little bit of last minute gamesmanship here.
Speaker 3 (01:23):
It's not that uncommon for prosecutors to make an offer
on the eve of trial. Now, the big question is
what were they offering, right, It's one thing if they
were offering him twelve years. It's another thing if they
were offering him three years or something like that. The
fact that he said no, you know, I guess it
depends again on what the offer is.
Speaker 2 (01:37):
But he's dug in.
Speaker 3 (01:38):
Look, he appears to believe he's got a shot at
winning this trial. Otherwise he would have taken that plea
because the downside here, if he loses this trial, Stephen,
he's going to get fifteen years minimum and as you
said before, up to life. So Sean Combs and his
lawyer must have sat down and said, look, there's a
chance to get out of this for less. But but
they're comfortable rolling the dice. Those are very high consequence
(01:59):
dice to roll.
Speaker 1 (02:00):
Let's get to the jury selection, Ellie, which obviously started today.
How long should we expect this process to take place?
Speaker 2 (02:07):
So this is federal court.
Speaker 3 (02:08):
Federal jury selection is way quicker than state jury selection. Right,
We've seen state cases drag on for weeks and weeks
and weeks. I have had jury selected in multiple murder
cases in two days or so. Now we have the
complication in this case that everybody knows the defendant. Everyone
who comes in there as a perspective juror will have
(02:28):
at least heard something about Sean Combs, about Diddy.
Speaker 2 (02:31):
So that takes longer to wade through. I am certain we.
Speaker 3 (02:34):
Will have a jury by the end of the week.
If I had to guess, I would say we'll have
one by Wednesday. Federal court moves pretty quick when it
comes to jury selection.
Speaker 1 (02:40):
Given the charges federal prosecutor is levied against Didty, what
type of jury should his defense team want to see?
Speaker 2 (02:47):
Actually, so this is where the gamesmanship comes in.
Speaker 3 (02:50):
Stevid, I'll never forget something that when I was a
young prosecutor, a veteran defenselaer who've been practicing forty fifty years,
said to be something like jury selection isn't just a
big deal.
Speaker 2 (02:59):
It's the whole ball game. I mean, these are the
people who decide the case.
Speaker 3 (03:03):
Now, let's think about this from the defense side, Like
you said, your Shawn Combs or Shawn Colmmes's lawyer, what
are you worried about here? To me, it's pretty obvious
you want to avoid anyone who a knows about this case.
Mostly everyone does and be just has their mind made up,
has already come to.
Speaker 2 (03:19):
Some sort of judgment.
Speaker 3 (03:20):
There will be many many questions asked of the jurors,
the potential jurors. Have you heard about this case, have
you formed any opinions? Could you still consider the evidence fairly?
But look, the fact of the matter is this case
has gotten an enormous amount of publicity. Shawn Colmbs since
the indictment came down, has been the subject of all
sorts of criticism, of jokes in the media, And I
would be looking out for people who already had their
(03:41):
minds made up against him and could not come in
there and judge the case fairly and im partially. But
the catch, though, Stephen, is a lot of people will say, oh, yeah,
I could be fair and impartial. I could put aside
everything I've heard. But this is where your gut instinct
comes in. As a lawyer, I tried a case against
Jehan Gotti junior, right, everyone had heard of the guy
of a lot of jurors said, oh.
Speaker 2 (04:00):
I could be fair.
Speaker 3 (04:01):
But then it gets into that gun like do I
believe him? Am I sensing something weird that I don't
think this person could be impartial? So defense is looking
for people who've already convicted the guy.
Speaker 1 (04:10):
But defense is also looking for people who don't, who
know little to nothing about the case. I would imagine
how plausible is that, in considering how high profile he is,
that people don't have four goinge conclusions because they're completely
oblivious to what's going on.
Speaker 3 (04:26):
Right, So you'd be amazed that the types of answers
you get from these potential jurors who sometimes like have
barely heard of things. I think everyone's going to have
to say they've heard of the guy. I imagine ninety
percent of the people will well, I know he was
in some trouble. But I actually think you're right. I
don't think that many people are going to say, well,
I know he's charged with racketeering and sex trafficking and
all that. I think they're going to just basically come
(04:47):
down to, well, I know he got arrested, I know
he's in trouble I know it has something to do
with sex and coercion and that kind of thing. So
that's going to be a key question. How much do
you know about this case? How much do you know
about the charges? Have you read the indictment?
Speaker 2 (04:58):
Have you seen this story covered on CNN on Steven A's.
Speaker 3 (05:01):
Show, And you're just it's a guessing game, right, It
really does come down to your instinct. But yeah, if
I'm the defense I would want someone who knows less
about the case. But on the other hand, if you
get someone who's like, I've never heard of this guy,
I've never heard of the case, they can start wondering like,
is there something off about this juror maybe I don't
want that?
Speaker 2 (05:18):
What about the defense team?
Speaker 1 (05:19):
From this perspective they've already put out They've described a
music mogul as a swinger who invited third parties into
his bedroom. I'm like, is that a detail that you
wanted to just let out as a defense team? I
don't know what to make of that?
Speaker 2 (05:34):
What say you.
Speaker 3 (05:35):
Third parties and fourth parties and fifth parties and sixth parties? Apparently,
but that is going to be the defense And look,
I know it's maybe not the greatest pr move in
the world. But it's a viable defense, and I think
this will be the core of the defense. It'll boil
down to, maybe he's a freak, ladies and gentlemen of
the jury, but there's no federal crime of being a freak.
There's no federal crime of having these sort of aggressive,
(05:57):
unusual sexual appetites going hand in hand with that. That's
not going to be enough on its own, because you're
going to have victims and witnesses testifying. You say, he
coerced me, he threatened me, he assaulted me, and so
they're going to have to combine that maybe he's a swinger,
but that's not a crime with an attack on.
Speaker 2 (06:15):
The victims in the courtroom, they're.
Speaker 3 (06:16):
Going to have to suggest that these victims, these witnesses
have bad motives, they're looking for a payday.
Speaker 2 (06:22):
They made up stories about him.
Speaker 3 (06:23):
It became a pile on and they all sort of
picked up on each other's stories. And that's a common
defense you see in these sort of multi victim, multi
witness cases. So I think that's exactly what the defense
is going to be.
Speaker 1 (06:33):
Says the last time you were on here weeks ago.
Have there been anything. Has there been anything additional as
it pertains to information or findings that have transpired over
the last few weeks that you find potentially alarming or
potentially beneficial to ditty to the Diddy case itself.
Speaker 3 (06:53):
Yeah, I've actually been surprised the other way, Steven, which
is I thought there would be more victims that are
charged in the indictment. I thought there would be more
expanded charges. Now prosecutors have tweaked this indictment up a
little bit. They now reference victim one and victim two
in the indictment. Apparently there is going to be a
third victim as well. But given the number of civil suits,
the dozens of civil suits, I thought that at some
(07:15):
point the prosecution would.
Speaker 2 (07:17):
Either be a adding more and more.
Speaker 3 (07:19):
Victims than they did and be adding more and more defendants.
This is a very unusual case in that the charge
is racketeering, which means in this case they're charging Shankon's
a thing at the head running a criminal enterprise, yet
he's the only defendant.
Speaker 2 (07:33):
Now you can do that.
Speaker 3 (07:34):
R Kelly is another example of a guy who was
a one man racketeering enterprise. But look, I used to
charge racketeering cases I used to teach the course on
racketeering within DJ.
Speaker 2 (07:42):
My racketeering cases were mob cases.
Speaker 3 (07:44):
There's twenty five guys, twenty eight guys, fifteen guys. So
it's unusual and I think a bit surprising to me
that the original indictment has more or less remained intact.
Speaker 2 (07:54):
I would have expected.
Speaker 3 (07:55):
I think, I said to you Steve and a back
at the time, I thought that there was going to
be bigger expansions of this indictment than their work.
Speaker 1 (08:01):
And because there aren't, is that an argument the defense
makes in his favor? Where the other Where are the
other defendants? How come he's the only guy that's really
being prosecuted here? Why is it that you haven't been
able to find anybody else that's you're accusing him of racketeering?
Speaker 2 (08:15):
Oh you bet.
Speaker 3 (08:15):
They're going to make some variation of that argument. They're
going to go, oh, my goodness, folks, a racketeering enterprise.
There must be a lot of people. Well, folks, guess
what they say, he's the whole thing. How about all
these other guys, how about these bodyguards, how about these handlers,
how about these enablers. Now some of them will testify,
some of them have been given deals, they've been given immunity,
or they've been given non prosecution agreements. So some of
(08:37):
these people are going to get on the stand and say, yes,
I was part of this, Yes I helped him out,
but in exchange for my testimony, I've been given a
free pass.
Speaker 2 (08:44):
Now you know what the counter to that is going
to be.
Speaker 3 (08:46):
They got a sweet deal because they're just telling prosecutors
whatever prosecutors want to hear.
Speaker 2 (08:51):
But it's not uncommon.
Speaker 3 (08:52):
I mean, I mean more cooperation deals that I could
even remember. So yeah, that's absolutely going to be a
dynamic at this trial. He's the only one. They say
this is a one man show. You shouldn't believe that,
members of the jury.
Speaker 1 (09:03):
What about the video Cassie Ventura, his ex girlfriend, where
he ran down the hallway half naked and dragged her
through it to the ground, kicked and all of that stuff.
We saw that video. First of all, we don't know.
I'd like to know whether you believe that's going to
be admissible in this court case Number one and number two,
the fact that she's agreed to testify against him according
(09:26):
to the reports, how damning do you believe there is
the potential for that to be.
Speaker 3 (09:30):
I think that video is the prosecution single most important
and most powerful piece of evidence. It will come in.
By the way, that was the subject of a pre
trial ruling. The judge said, yes, you may play the video.
Now the question is going to be what's the relevance,
what's the context around it. It appear that the prosecutors
are going to argue this was part of him threatening, forcing, coercing,
abusing this woman as part of his effort to traffick
(09:53):
her across state lines for sexual purposes. Apparently the defense
is going to be, no, this had nothing to do
with the sex trafficking, ring or coercion. This was a
fight they were having over infidelity. And you know, I
think Cassie will be Cassandra will be the most important
witness for the prosecution. But the attack on her is
going to be she's a liar, she's telling them what
(10:13):
they want to hear, she's looking to raise her own profile,
she's got a bad financial incentive, and so look, so
much of this just comes down to the jurors are
going to be sitting feet away from her.
Speaker 2 (10:23):
I mean, I've been in these courtrooms.
Speaker 3 (10:25):
They're going to be four feet away from her, and
so much of it is just going to come down
to how they assess her demeanor, what does she look like,
how does she deliver her answers? Is she credible? From
what I've seen of her in public, she seems quite
credible to me. But people don't always play the same
on the witness stand as they do in front of
a camera.
Speaker 1 (10:42):
What about the documentaries and stuff like that that have
been put out about him and some of the allegations
against them, and people essentially co signing on what he's
being accused of because they're highlighting his behavior or what
it was throughout these years. How much of an impact,
if at all, do you expect that to have.
Speaker 3 (11:02):
So prosecutors cannot obviously just play the documentaries or pieces
of the documentaries for the jurors, right that would be inadmissible. However,
if there's a witness on the stand who has previously
spoken in one of these documentaries, and there will be
many of those, everything they've said previously can be used
to cross examine them, to impeach them, as we say, so,
if a witness gets on the stand and says something
a little different than what he or she said in
(11:24):
a documentary or leaves out a detail or adds a
detail that they didn't say in the documentary, then that's
absolutely fair game for cross examination. And I assume in
this case, if the prosecutors are any good at their jobs,
and I'm sure they are, it's my former office, they
have not just whatever the documentaries are, but the raw
footage that came before it, Because a lot of times,
you know, you'll do a two hour interview and it'll
end up being twelve minutes on the documentary. So I
(11:46):
assure you both sides have watched that footage very carefully,
and it's all in play just the same if it
was prior testimony, you know, to a police officer in
front of a grand jury, it can be used.
Speaker 1 (11:56):
You've raved about your formal place of of occupation, Southern
District of New York, and what it brings to the
table in terms of.
Speaker 2 (12:03):
Its high conviction rate, et cetera, et cetera.
Speaker 1 (12:05):
You still feeling as confident in their case, considering their
reputation and what they bring to the table. You're still
feeling this confident with the whole diddy, with this whole
Did he matter against them?
Speaker 3 (12:20):
That's a great question. So I of course, you know,
look I came up through this office. I have a
reverence for it. But I certainly do not think the
SDNY is infallible. They've made a lot of missteps, including
most recently, I think, throwing out the Eric Adams case,
which I know a lot of the people there pushed
back and disagreed with, but that came from up above. No. Look,
I think the case is a sound case, looking at
(12:41):
the indictment. I think the hype around it, and maybe
the SDNY helped promote this hype got a little beyond
what actually.
Speaker 2 (12:48):
Ended up happening.
Speaker 3 (12:49):
But look, the odds are stacked against any criminal defendant
in that courthouse. You know, you'll see that conviction rates
are ninety eight percent. Throw those out because that includes
guilty please, which almost case plead guilty. There are no
reliable data on how many trials result in conviction, but
in my experience and just following that courthouse, seventy eighty
percent or so of all trials resulting conviction. I don't
(13:13):
think Shaw Colms is going to cut a sympathetic figure
here for the jury. I think they're going to hear
some horrible things about him. I think the witnesses are
going to present some devastating testimony. I think that video
that we talked about of the assault is really really
damaging evidence. So I would put it, you know, if
I had to make a picture, I would say seventy
five eighty percent that he gets convicted.
Speaker 1 (13:33):
Last question, is he better off or worse off now
than he was when he was first arrested as it
pertains to this case and how he's looking.
Speaker 3 (13:41):
Well, I think he's slightly better off in that it
hasn't been this explosion in the number of witnesses.
Speaker 2 (13:48):
But look, it could get a lot worse. I mean,
he was given that plea offer.
Speaker 3 (13:51):
Again we don't know what it was, but he was
given a chance to sort of hedge his bets and
mitigate his bottom line loss here and he chose not
to do it. And the way these trials work, it's
it's a flip of a coin. It's yes or no.
The jury can't come down and say, well, we want
to kind of convict him. But if some you know,
I mean, well, look they can split the verdict. I
guess they should say that they can convict them on
sun counts but not others. But man, if he gets
(14:12):
convicted on anything. In this case, he's looking at double
digits plus behind bars, so he's taken. Look, it's a
huge gamble. It's terrifying for anybody to be in that position.
You know, I've seen a lot of people go through it.
The odds are against him. He has a very good
defense team behind him, so anything can happen, but his
life is on the line.
Speaker 2 (14:32):
Here forgive me.
Speaker 1 (14:33):
I got one more question. I just thought about if
your case is that strong, if you're the Southern District
of New York and your case is that strong, why
offer him a plea?
Speaker 3 (14:42):
So it could be that they don't think that. They
could be that they're worried about some aspect of their case.
It could be they're worried about one of the witnesses
or the victims. It also could be Look, the reason
you offer a plea deal when you have a strong case,
especially on the eve of trial, is A you might
be worried about some aspect of your case, or B
you're just trying to again.
Speaker 2 (15:00):
Cap your risks.
Speaker 3 (15:01):
You know, you lock in a conviction, you move on
to sentence saying, and let's keep in mind there's always
a risk.
Speaker 2 (15:06):
Stephen A.
Speaker 3 (15:06):
Of what we call jury nullification, which means when the
jury or a single juror just says, I don't really
care what the evidence is. I'm gonna vote not guilty,
and all you need is want If you're the defense, right,
you need.
Speaker 2 (15:18):
All twelve jurors beyond a reasonable doubt to convict.
Speaker 3 (15:20):
So you get one person on that panel and says,
I don't know, I don't believe some of these victims,
or I feel bad for Shawncolms, I feel like he's
been railroad.
Speaker 2 (15:28):
Racial issues could come into.
Speaker 3 (15:29):
Play here if a black man sitting at the defense table,
so a celebrity, you know, a universally known guy. So
my fear going into this as the prosecutors would not
so much be of an acquittal. I don't think you're
gonna get twelve zero not guilty, but you never know.
In a high profile cases, cases hang and then that's
a win essentially for the defense. You can always retry
a hung jury, but it's a nightmare for prosecutors. So
(15:51):
it may have been they said, look, if we can
lock in a conviction, get x's the penalty, avoid the
time and expensive trial, and avoid the risk of a
hung jury, maybe they calculated that would have been worth it.
Speaker 1 (16:01):
This case is not gonna be televised or anything like that, right,
I mean cameras are not gonna be in the court,
loud in the court room or anything. Right, Is that correct?
Speaker 2 (16:06):
Right? Federal courts are dinosaurs.
Speaker 3 (16:08):
They refuse to allow not only cameras, but even live
audio feeds. Even the Supreme Court, by the way, it
gives us live audio feed now. But they are old fashioned.
I am on this soapbox, stephen A. They need to
let cameras in there. The Constitution says, public trial. Why
are we acting like it's eighteen forty show it? We
can all watch it. We should get to see it.
Speaker 1 (16:27):
Ellie Honing, senior legal analyst for CNN, one of the
best in the business. It'll be much watch television whenever
you're on. I can promise you that. Thank you, Ellie, Man,
I really appreciate it. Man, take care of yourself.
Speaker 2 (16:38):
Thanks to today. I appreciate it. Talk to you soon.
Host
Stephen A. Smith
Popular Podcasts
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Therapy Gecko
An unlicensed lizard psychologist travels the universe talking to strangers about absolutely nothing. TO CALL THE GECKO: follow me on https://www.twitch.tv/lyleforever to get a notification for when I am taking calls. I am usually live Mondays, Wednesdays, and Fridays but lately a lot of other times too. I am a gecko.