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- [00:00]
Brian Buckmire
Hi, I'm Brian Buchmire, an ABC News legal contributor and host of Bad the Case Against Diddy. You're about to hear our latest episode following everything going on in Sean Combs trial from the prosecution and the defense. Remember to hear all of our updates on this case follow Bad the Case Against Diddy. We're dropping two new episodes every week, including one that's not available anywhere else. Now, here's our episode.
- [00:30]
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- [01:00]
Donna Rituno
They called my cross examination vicious. And I'm thinking vicious. Like I, I don't even raise my voice. Like, I am very calm. I'm very measured. I'm never yelling at witnesses. I'm not sarcastic. I really just ask the questions.
- [01:17]
Brian Buckmire
Today on the show, we have a fascinating interview with Donna Ratuno. Don is a criminal defense attorney who's known for defending men accused of sex crimes, most notably Harvey Weinstein.
- [01:29]
Donna Rituno
I have a job to do. Like, what did you want me to do, walk in there and say, okay, I have no questions? I mean, that's not how this works. We have a right to ask these questions.
- [01:38]
Brian Buckmire
This is Bad Rap. The Case against Diddy. I'm Brian Buckmire, an ABC News legal contributor and practicing attorney this episode. Who's the leak? First, let's catch up on what happened in court this week. Court resumes on Friday after two days off, one for the planned Juneteenth holiday, one because a member of the jury wasn't feeling well. That's right, a sick juror can shut down court. But the real drama happened earlier in the week. The judge began Tuesday's court session with the most stern warning he's issued from the bench since the start of the trial. Judge Subramanian said an article he did not specify which one included information about the case that hasn't been made publica leak. He didn't share what information he was referring to, but it was related to a sealed conversation that happened Friday about an issue with A juror. We don't know what the issue is, but. But prosecutors have said it involves communications with his former colleague over his jury's service. The defense is calling for this unnamed juror to be removed. The judge has not made a decision about that yet, but he seems quite upset about this potential leak. Going forward. He said he'll hold the lead attorneys from each side personally responsible for their teams. He said the buck stops with you and any further violation of his gag order is he'll haul the attorneys into court, force them to testify and conduct an examination of their electronic devices. The judge said, this is the only warning I will give. Also this week, the jury saw videos of freakoffs for the first time. They've seen still photos from these videos before, but this is the first time they saw actual clips. The public and press were not allowed to see them, but we did hear about 30 seconds of sound from the video by accident. Some kind of technical glitch. The prosecution played small snippets of the video, but the defense played longer clips for the jury. Tenny Garrigo said in her opening statement that the defense thinks they're powerful evidence that the sex was consensual and not based on coercion. While the videos were played, Combs looked over at the jury multiple times. He seemed to bop his head to some music that could be heard through the headphones. On Friday, court will hear testimony from Brendan Paul, a former assistant who's expected to face questions about buying drugs for Combs. Like other former employees, he'll be testifying under immunity. A few weeks ago, we brought on a prominent sex crimes prosecutor to get her take on the Diddy case. This week we want to bring you a perspective of a defense attorney. My guest today is Donna Rituno. As we mentioned, Donna helped defend Harvey Weinstein, though she no longer represents him and doesn't represent Combs either. It's also important to note that even though some of Combs alleged crimes are sexual in nature, they're not the same as what Weinstein was charged. Rape, sexual abuse and assault. Combs says all sexual encounters were consensual and he denies any wrongdoing. So let's get to our conversation. I started by asking Donna for her assessment of how the government is doing so far. Are they making their case against Diddy?
- [05:09]
Donna Rituno
So I think that question calls for a semi long answer. So I'll give you what I think about it. First of all, I think any time the government brings racketeering charges, we have to look at the fact that there's multiple layers of things that they have to prove. There's part of me that I listen to the evidence some days and I think they're not close. And then there are other days that I think they're setting up the dominoes, right? Like one piece at a time through one witness. So, you know, you hear from the security guard and you hear from Kid Cudi and you hear from the woman who worked for him, and you go through. And little by little by little, you see what they're trying to do. But at the end of the day, I'm not so sure that the government is proving this racketeering charge. And I think jurors as a whole are very skeptical on racketeering. I think the second part of the issue is, you know, racketeering was originally made part of the statutes to go after and try to convict mobsters. And so it was an organizational group that took place in committing crimes and what they did in order to commit crimes and what they had to do with each other to make crimes successful. So given the fact that there's one defendant here on that charge, I think as of now, I think they're going to have a hard time in terms of the other counts. I think when we're looking at trafficking and you're looking at prostitution, I think that those counts are fairly straightforward in the sense that they either meet the elements of the statute or they don't. And I think here they are proving those aspects, because in that aspect, you don't necessarily have to prove this level of consent. I think sometimes these cases become death by a thousand cuts. Right. It's not one piece of evidence that is a slam dunk. It's not one set of circumstances that will present a conviction. I also think that given the fact that Cassie was eight and a half months pregnant and had to testify first, I think it changed maybe the way they would have presented the evidence. And maybe had she been able to testify a little bit later, the sequence of events may have made more sense in terms of the charges. I think it may have been a little difficult for them to have to start with her because it didn't put a lot of other things into context. Usually you don't start with one of your star witnesses. That's not usually the way trials start.
- [07:41]
Brian Buckmire
So I actually want to dig a little bit deeper just on that, Rico, because on Tuesday we heard a bunch of text messages and videos from who I would consider, and I think the government considers alleged co conspirators. So Christina Korum, Drock people that we thought at the beginning of this trial would have gotten immunity and testified. Do you think the fact that they're absent so far, but we're hearing them through their text messages helps or hurt in trying to prove this RICO case?
- [08:10]
Donna Rituno
You know, I think the intention is that it's trying to help. But in the end I'm sure that that's an argument that the defense is going make saying, well, where are they? Why aren't they here? Now of course the government's response to that is going to be they're not here because they're afraid, because this organization was so deep and was so threatening to them in so many ways and that's why they're not appearing.
- [08:36]
Brian Buckmire
Well, the defense, I think in a smart move, and I'm actually curious what you think as well, has made consent a central part of this case. And so both of the government's alleged victims, Cassie Ventura and Jane say that Combs made them perform sex acts when they didn't want to. I think that's part of the sex trafficking of the force, fraud and coercion. Cassie even accused Combs of rape. Prosecutors have argued that there was coercion in those relationships, while the defense insists that the encounters were actually consensual. So how are the attorneys in Sean Combs case defending him against these allegations? And in your opinion, is this working?
- [09:11]
Donna Rituno
I think it works to a degree. Right. We have been conditioned as a society to change the way we view this word consent. Right. And I think it probably happened in cases like Weinstein and you know, most regular people think about consent as two people engaging in an activity that they agree to engage in. And I think the Cassie testimony is very interesting because. And Jane, because if you look at anybody that maintained a relationship with someone, I think the defense's position is that in and of itself is this implied consent that continues throughout the course of this relationship. Now can consent be withdrawn at any time? Yes. Can you decide you no longer want to partake in certain activities? Yes. And so I think that it's such a complex issue and it's not black and white for either side. Because if you look at Cassie, right, Cassie sending text messages, Cassie saying I can't wait for the next freak off. Cassie takes the stand and admits to this years long relationship that they had and then continues to stay with him after all the allegations of horrible beatings and horrible. Right. So at what point do you say, well that woman has her own agency to make those decisions. Right. And she had access to all these people in his life. So I think the defense is making an issue out of consent, because that's what they have to do. What else are they going to do? If you. If you don't claim that all these things are consensual, then you're in a position where you're basically lying down and saying, he's guilty as charged. And, I mean, you look at Jane, Jane testified that he's still paying her bills.
- [10:51]
Brian Buckmire
Yeah.
- [10:52]
Donna Rituno
So, you know, still. Right. Still paying her rent. Still paying her attorney for. Correct. For her attorney. You know, she's admitting to the fact that she's with him up until the day he's arrested. So you've already known now about the rate at the house. You've known about all the allegations. Allegations. You've seen the CASI video. You've learned of the Casi lawsuit. So, I mean, you are informed, right. You are making a decision based on information that you have. And just think about what we knew as the public and what she must have known behind closed doors. So I think the defense has to go down that road, because not only does it exist, but it's also relevant in terms of making a determination about what the state of mind of these witnesses was.
- [11:40]
Brian Buckmire
I'm curious as to what you think of some of this testimony as it applied to both Cassie and Jane. For Cassie, it was. We saw the text messages of her saying, I want to have these freak offs, planning some of them. Sean Cohen's even saying, we can just sleep in this day. We don't have to have a freak off. And she's saying, no, let's have the freak off. And then on the stand saying, well, I wasn't telling the truth. I really felt this way, but I was texting him another. And then with Jane similarly texting him one thing, but she actually had notes in her phone that she showed the jurors as well, saying, well, this is how I was really feeling, but this is what I was telling Sean Combs. Alexandra Shapiro makes a very strong argument, I think, in my mind saying, it's within Sean Combs mind what he believes. And if he's being given this information, then how does he know this isn't consensual? Is that a legal argument that just the lawyers are throwing out? Is that an actual argument?
- [12:31]
Donna Rituno
No, I think it's an actual argument. I think it's an act because, again, it has to be what he believed was happening at the time. And if you have no other information or knowledge other than people saying, I want to be involved in this I can't wait till the next one. I'm excited. I want to be with you. There's no other way for him to know that. I always make an argument to the jury. We never know what happens in those rooms, right? We're not there. We don't know. But we know all these things that surround it. And the only way you can make true determinations about whether you feel that someone acted voluntarily or not is by their actions surrounding it. And in this case, I think both parties can argue that in different ways. Combs lawyers can say he had no knowledge of what they were saying or doing other than what he knew. Now the government can say, well, we now know all of these other things to be true because this is how they were feeling and this is what they were doing. And he should have known based on A, B and C. But it's going to be very interesting. And there's no way that he should be held accountable if he had no knowledge of what they were feeling in those specific ways. So I think that it's a legal argument, but I also think it's a factual argument.
- [13:51]
Brian Buckmire
I think you know this probably better than anyone, especially being a defense attorney for as long as you have been and being a former attorney for Harvey Weinstein. But these sex cases involve experts now to explain concepts like love bombing and trauma bonding. And even in the first couple of weeks of the trial, the government put on a forensic psychologist to testify about that. Exactly why people stay in relationships where they're being abused. And it seems to be a critical part of the testimony for the government in that explanation of why these two women, Cassie and Jane, still love Sean Combs. So what's your reaction to that element of the government's argument? And maybe if I can slide in just a little as well, I'm pretty sure the defense is gonna have their own expert. So how do you think about this battle of experts and how this is gonna play out?
- [14:38]
Donna Rituno
Experts in these types of cases have become a much bigger deal than they used to be. And me crazy, to be honest, because I don't feel like it's really fair to put somebody up there to say anything you do after a sexual assault is reasonable. Right? Whether it's a forensic psychologist, whether it's a expert that deals with relationships, whether it's somebody that treated a victim or didn't. They get up and they say, if you buy plane tickets and you want to travel with the person who raped you the next day, that's totally normal. It doesn't mean you weren't raped. And if you go to a concert the next day, that's totally normal. And if you don't go to the police, that's totally normal. Like basically anything goes is really what they're saying. So to me, it's this overreaching umbrella to say you can't hold actions after the fact against a quote unquote victim. And I just think that that's too over broad. It's too overreaching. I think it's absolutely prejudicial to a defendant. And what it is attempting to do, of course, is completely negate the argument that the def. And so I don't love them. But yes, they're used in every case. And I do think that when you have competing experts, sometimes they cancel each other out. But I also think sometimes jurors in these cases want to say, why would someone make this up? Why would someone sit here and go through this? And especially in a case that's as public as this one, why would someone put themselves through this? I think those witnesses come in in order to say they're not making it up because anything they say is reasonable. And so I just, I find that to be a very difficult road to climb.
- [16:27]
Brian Buckmire
Yeah. The believability or credibility of an alleged victim seems like it will be really important in this case. Do you find Cassie Ventura and Jane credible or believable?
- [16:40]
Donna Rituno
I do. I do think that they're credible. I think that they, you know, they admitted the relationship. They admitted the nature of the relationship. So I do, I find them both credible.
- [16:54]
Brian Buckmire
And I would agree with you in sitting in the court and listening to them. I don't think there's many things that they said, especially Cassie, where I would say they were lying. But could they be credible and be victims of domestic violence and not victims of trafficking?
- [17:11]
Donna Rituno
Absolutely. Absolutely. Which is what I really thought after I listened to Kathy's testimony the first few days. That was exactly what my takeaway was.
- [17:24]
Brian Buckmire
Let's take a short break. When we come back, Donna tells us how the defense could try to counter the government's strongest pieces of evidence against Sean Combs and what sort of juror she thinks is most likely to side with Diddy.
- [17:40]
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- [18:11]
Donna Rituno
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- [19:13]
Brian Buckmire
Oftentimes when it comes to and I know this isn't a sexual assault case, but there are allegations of it, which Combs adamantly denies. This is a RICO and sex trafficking and transportation to engage in prostitution case. But oftentimes in their allegations of sexual assault it's often he said, she said. Right. But in Sean Combs case, we have this massive piece of evidence that being the video of the Intercontinental Hotel and maybe to a lesser degree, but still I think pretty big. The alleged arson of Kid Cudi's car, the alleged bribery of Eddie the Angel, the hotel security guard. And I bring these up for a number of reasons. One, they're concrete pieces of evidence that we can see in many regards and two, they're predicate acts to that RICO charge. So these in my mind present a real difficult challenge for the defense. How do you think the defense has to overcome these challenges and what are they going to have to prove in these last couple of weeks to try to turn the table on some of these charges and allegations?
- [20:11]
Donna Rituno
Of course they're going to have to deal with the security guard and the video, right? I have $100,000. Take the money and just, you know, get rid of the video. Obviously that's a major issue. But what's the defense going to say about that? He's a high profile guy. He doesn't want it out there. We saw her get beaten. Right. Okay. He's a domestic abuser. He's not charged specifically with that. It's beyond the statute of limitations and it's federal court. However, as you said, it is a predicate to these RICO charges and to show this enterprise and to show the force and the threats and you know, everything that went into. But I think that's the only argument they have against that is okay, yeah, we didn't say he's a great guy and he had a lot to lose and that's why the payoff was there. Not because he was worried about the freak offs, not because he was worried about the sex trafficking, but because he didn't want to be seen as this abuser to the public that adored him. So I think that's the response to that in terms of the Kid Cudi circumstance. You know, they're gonna say nobody song do it. You know, threats are not right. But. But again, threats go to the racketeering. They don't have to prove that he actually set a match and lit the car on fire. They have to prove that it was part of this scheme and this design to force and coerce people to remain part of this operation. That one's tougher. But what they're going to say is that those are allegations and even though the assistance that she went to the house of Thumbnail, nobody actually saw him set that car on fire. Yeah, but you know, then you had Cassie kind of back that up as well. So it'll be interesting to see how the jurors look at all this information.
- [21:54]
Brian Buckmire
The other thing that came up and then I think this is more common knowledge for you and I and it's always a fascinating thing I think for non attorneys. But in a sexual assault sex based case, when you have a female alleged victim, there is a clear understanding that. But women cross examine women when a woman is accusing a man of sexual assault. In this case we have Anna Estevao who cross examined Cassie Ventura, Tenny Garagos, who cross examined both women, including Jane in this case rather than for example Mark Ignivelo or Brian Steele or Xavier Donaldson. Can you explain the strategy of that of having a woman during the cross examination rather than a man in a case like this?
- [22:37]
Donna Rituno
Sure. I mean as a woman who's cross examined dozens upon dozens upon dozens of women and sexual assault type cases, I think the theory is it really has a lot more to do on the effect of the listener than it actually does in terms of the witness and the lawyer independently. I think when the jury is watching, I think if there's any sympathy to be had when a man is cross examining a woman, or if the questioning gets difficult right away, it's almost like the man looks like he's bullying the woman, and you get this feeling that there's this re. Victimization or, you know, it's not a fair fight. But it is very true that it is the effect on the listener. So I think that that has more to do with it, obviously, than anybody's skill. Right. We all know that any good lawyer can get up and ask the questions that need get asked in any type of a case. But for some reason, in cases that involve more sensitive information, cases that involve more embarrassing circumstances, it seems to be that women can ask the tougher questions of women witnesses and not have such a visceral reaction from the listener. So I think that's really more of what it has to do with than skill of any kind of.
- [24:03]
Brian Buckmire
I agree it's not about the skill, but if it ever happens to me, I'm definitely calling you, Donna, to do the cross.
- [24:07]
Donna Rituno
I'll be there. I'll be there. During Weinstein, they called my cross examination vicious. And I'm thinking vicious. Like, I don't even raise my voice. Like, I am very calm. I'm very measured. I'm never yelling at witnesses. I'm not sarcastic. I really just ask the question. But that is the way the world views these cases. And the minute we believe that a group or class of people should be automatically considered victims, right? Or this notion, believe all women, it creates this sort of bubble around them that, God forbid you Pierce, it's like, well, wait, no, I have a job to do. Like, I remember saying that I'm pressed. What did you want me to do, walk in there and say, okay, I have no questions? I mean, that's not how this works. Right? We have a right to ask these questions. And so I find it interesting, actually, it's fascinating. And it's only this area of. Nobody ever asks me that question in any other type of case I tried.
- [25:04]
Brian Buckmire
I want to shift just a little away from gender. And I want to see what you think about this, because oftentimes when a juror is selected, we talk about the makeup of the jury and how that could impact the case. I think oftentimes we may talk about gender. How many men or women? For example, in this case, eight men. Four women. Oftentimes, we talk about race, But I want to throw this to you. I think in a case like this, I think age is probably the most important when you're talking about consent. Just a reminder, listeners, I think even with the new juror replacing the old one, we still have half the jurors over the age of 51. And I think at least five of the jurors are 67 to 74. And if you're talking about consent, and I say this just for, like, my own personal experience, I'm in my mid. Oh, my God. I'm in my mid to late 30s. Yeah. I am just realizing that now.
- [26:00]
Donna Rituno
Well, I'm gonna be 50 next month.
- [26:02]
Brian Buckmire
So I would have put you at the same age as me.
- [26:05]
Donna Rituno
Oh, thank you.
- [26:06]
Brian Buckmire
I need your skincare program later, please.
- [26:07]
Donna Rituno
Thank you. You got it.
- [26:08]
Brian Buckmire
No problem. But when I talk to my father, who's in his mid-60s, or my mother about consent or my siblings, who are in their 20s, we all have very different ideas of consent. And so I'm curious what you think the demographics of age in this case may have an effect on this trial as we talk about consent?
- [26:28]
Donna Rituno
Great question. And it's one of the things I deal with immediately when I look at jurors. I don't want any jurors under 45 years old in these types of cases if I can avoid it. I think you're 100% correct that age plays a much bigger factor here. I also think that when you're looking at women, older women jurors with sons are great jurors to have because they think, oh, my gosh, my son could be implicated in something like this. Right. So to me, age and moms with sons are the best jurors to have. I think in this case, it will play more in Sean Combs favor to have an older jury, because I don't think they buy these concepts, that people continue to come back for more. I think that they look at it and they think, well, if that were me, that's not how I would have handled it. And so I had a similar jury with nine women, and they were all older, and they found my client not guilty in 61 minutes. It was like they just didn't believe the story that she was trying to tell. And I do think that women sometimes can be much more judgmental of women because they put themselves in their shoes. So you think you don't want women jurors? I think you do. I think today you have a lot of men who maybe can put themselves in somebody's shoes and think, oh, maybe I acted inappropriately once. And then they want someone else to be convicted for it. I'm not so sure race plays as much of a role in this case as it does in some. But, you know, we'll see. It'll. It'll be interesting to see.
- [28:03]
Brian Buckmire
I'm not gonna miss this opportunity, cuz I've got you here. And because we've got recent news about your former client, Harvey Weinstein. Even though I know we're here to talk about Diddy, I know you don't represent him anymore. His New York trial, he had a bit of a mixed bag in terms of a verdict. He was found guilty of one count, not guilty of the other, and the jury was hung on the third count or there was a mistrial. And so this was sort of a win for Weinstein, though a little bit messy. And the reason why I bring this up is because in Sean Combs, it might not be a clear verdict one way or another. It might be a little messy in terms of a mixed verdict. And it also might be a little bit messy in terms of if he's convicted, there might be an appeal. What do you think?
- [28:49]
Donna Rituno
Well, first of all, the Harvey Weinstein trial was messy in terms of jury deliberations were messy. I think that that can happen here. I think that anytime. Again, back to rico. RICO is confusing for jurors. It's confusing for regular people. Rico's a confusing situation. And so I'm not so sure that you're going to see a verdict here. That's all or nothing. I think this could be a verdict where you have some, Counselor, not guilty, some that are guilty. I do not believe that he will be found not guilty on all counts, but I also don't believe he will be found guilty on all counts. So we'll see. I think sometimes, and that's our fear as defense attorneys, like, you can do such a great job and you can win on the more serious counts, but what did it really do for your client? Especially when jurors like the feeling that they did a little bit for everybody. We'll find, find some guilty here and some not guilty here. And you know that that's one of the major risks we have. The more counts there are, the less likely for somebody to completely walk out.
- [29:52]
Brian Buckmire
Yeah. Juror is thinking that a compromise is a compromise for both sides, not realizing that depending on the charges, not quite the compromise they believe it to be.
- [30:00]
Donna Rituno
Exactly correct. And I will go to my grave saying that if jurors knew penalties you would have less guilty verdicts.
- [30:11]
Brian Buckmire
Well, Donna, I want to thank you very much for joining us today. It has been a pleasure. I have watched you practice from afar and it's great to hear you break down this trial.
- [30:20]
Donna Rituno
Sean Combs, so kind of you to have me. Thank you so much. It was a pleasure to talk you to to.
- [30:32]
Brian Buckmire
The Case Against Diddy is a production of ABC Audio. I'm Brian Buckmire. If you're looking for even more coverage of the Diddy trial, you can check out our daily show, Burden of the Case Against Diddy. The show Streams weekdays at 5:30pm Eastern on ABC News Live. You can also find it on Disney, Hulu or on most of your favorite streaming apps. The podcast production team includes Vika Aronson, Audrey Mostek, Amira Williams, Tracy Samuelson and Sasha Aslanian. Special thanks to Stephanie Morris, Caitlin Morris, Liz Alessi, Keddie Dendas and the team at ABC News Live. Michelle Margulis is our operations manager. Josh Cohan is ABC Audio's director of podcast programming. Laura Mayer is our executive producer.
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