Sean “Diddy” Combs was smiling when he strode into the 15th floor courtroom on Tuesday afternoon, in part because he was able to stride at all.
Judge Arun Subramanian had just approved a defense request that the rapper and business mogul be allowed to attend the hearing without shackles and Combs began by hugging each of his three lawyers. He then sat down at the defense table in a short sleeved tan prison uniform; tan being the new orange.
In court, the matter at hand was one that might conceivably end up giving Combs more cause for cheer.
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On October 28, a Bureau of Prisons investigator had used a facility wide search for weapons and contraband as a pretext to examine and photograph a stack of papers in a locker in Combs’ cell. A prosecution filing on Friday led Combs’ lawyers to believe that the government was using materials from his papers that should be protected by attorney-client privilege.
Two excerpts from the papers were cited to support a government allegation that, “The defendant’s goal is to blackmail victims and witnesses either into silence or [to] provide testimony helpful to his defense. The filing further contended that such tactics are “more often seen in mob trials or Mexican Mafia-style cases.”
In a Monday filing, Combs’ lead attorney, Marc Agnifilo, had asked Manhattan Federal Judge Subramanian for an emergency hearing.
“This is a matter of grave concern that, most respectfully, must be addressed immediately,” the defense filing said.
The judge set a hearing for 3 pm Tuesday, and Agnifilo made an impassioned argument that Combs’ rights had been violated. He noted that a folder atop the papers bore a word that suggests the documents were indeed protected by attorney-client privilege.
“The first folder, it says ‘LEGAL,’” he said. “It’s not a Staples legal pad. [Combs] has handwritten in blue the word ‘legal.’”
Agnifilo told the court that Combs had brought the stack of papers to every meeting with his defense team.
“This is a sweeping case,” Agnifilo said. “We are studying this man’s life. That’s what we do. This is an investigation of this man’s entire life.”
Agnifilo said that the papers included the name of a retired doctor that the defense might call to the stand.
“The government now knows potential defense witnesses for a May 5 trial,” Agnifilo said. “This has been a complete institutional failure.”
He added, “The best word for it is dangerous.”
Prosecutor Christy Slavik assured the court that the materials photographed in Combs’ cell had been screened by a “filter team” in her office for anything that might be protected by attorney-client privilege. She said the team had cleared 11 pages of notes and eight pages of a calendar.
“The government received these materials through a completely appropriate channel,” she insisted.
She reported that the investigator had gone into Combs’ cell in furtherance of a “covert” grand jury investigation. She noted that the investigator had previously “reviewed the defendant’s calls and emails in which the defendant overtly and persistently engaged in conduct that violated B.O.P. rules and regulations.”
Agnifilo remained adamant that nobody except his client had the right to examine the papers in question. The judge noted that the defense filing had cited as a precedent US v DeFonte; a 2006 decision involving a journal kept by an inmate at the now shuttered Metropolitan Correctional Center in Manhattan. The writings were found to be protected by attorney-client privilege because the inmate intended to and subsequently did communicate the contents to a lawyer.
The judge asked Slavik if she was aware of the case and she replied that she was not. The judge said he would give both sides time to come up with cases to support their positions. He seemed ready to believe that the prosecution had been overzealous and ordered Slavik to delete the photos of the documents in the meantime.
Another favorable sign for the defense came as the judge noted that they were all scheduled to be back in court for a bail hearing on Friday. He mentioned another big shot federal sex trafficking case, this one involving former Abercrombie and Fitch CEO Mike Jeffries.
Jeffries was arraigned in Long Island federal court on October 25 and freed on a $10 million bail package that included in-home detention and GPS monitoring. Combs has offered a $50 million bail package with similar provisions and the judge seemed to think it might be something worth considering.
But the prosecution is all but sure to note a big difference between the two super rich accused sex criminals; Combs has a history of violence, as documented by the horrific video of him battering his then girlfriend, Cassie Ventura. Combs also had a stash of weapons in his Los Angeles home when it was searched.
Yet, there seems a chance that the prosecution is so determined to put Combs away that he actually may make bail on his third attempt. He would then have cause to stride from the courthouse with a bigger smile than the one he had on Tuesday.
