Ashley (3:30)

Yeah. And you know, Mark, there's a lot. It's heavy. It's a heavy duty when you're asked to do these. And I've done a number of death penalty cases. And when you're, you know, when you're death qualified and you're in an area, you get called about things like this, and you have to really think about it because the facts of the case are usually really heavy. You have to think about your practice because you virtually have to shut it down. I mean, the last death penalty case I had, I had to basically shut it down for three months and just focus on that case. And it's just a different. It's a different case when, you know, at the end your client could die. That is a different level of stress. And so, you know, it's not a decision that I think is given lightly. And I know a lot of folks would probably have some issues with how much money the defense, you know, the defense budget. There's a large defense budget. I think right now it's $750,000. There's, you know, $500,000 extra for the prosecution. But these cases are expensive, and they're expensive because it's the death penalty. Death is final.

Mark Gergas (4:26)

Right. And one of the things that you find that are common in any, we call them in California, special circumstance prosecutions, which makes you death eligible. If the prosecution gets death, the jury gives a death sentence. What ends up happening inevitably is there is what's called an IAC claim and ineffective assistance of counsel. And one of the ways that you can attack a conviction and a death sentence is to say that you didn't have an effective lawyer defending you. And so it's kind of preemptive to a degree, but also to your point. 500 extra for the prosecution. When was the last time anybody ever said to the prosecution, no, you've gone over your budget. I mean, that's one of the things that cracks me up.

Ashley (5:16)

Well, and they get to pick and choose. You know, they can say, oh, well, we're going to spend a little less money. I mean, I don't know if you all remember the. The case down in Georgia. His name was Brian Nichols. But he's the one that shot a judge and, you know, had this rampage in the courthouse. When we had his death penalty trial, you could basically get probation on every murder in the county because they spent all their money on his case. And that was a decision. They wanted the death penalty. They didn't get it, but, you know, it was a decision that they had to use their resources as prosecutors, and they did. I mean, literally, all the other cases we were. It was like a fire sale. But, you know, that's the decision.

Mark Gergas (5:50)

Well, and, you know, the. The Coburger case, the prosecutor there took a whole lot of heat for cutting a deal where there was no death penalty. Whether people like to admit it or not. A lot of times it's precisely for the reasons you say, because there are budgets. Even though, you know, cracks me up as we're sitting here, 15 miles away from where I'm sitting in the city of Santa Monica, they have a police scandal where they've got hundreds of millions of dollars in judgments. Nobody thinks proactively, hey, how could we have stopped this in the first place? Or how could we. You tend to, because of the public outcry, always want to throw all of your resources at something that's high profile, not understanding that there's a cost to that later on.

Ashley (6:38)

Well, I just think about how much Nathan Wade was paid to, you know, do Fonny Willing Willis's bidding. I mean, over a million dollars. So, hey, maybe some of that money can be spent on this.

Mark Gergas (6:47)

Well, I have a question about that. As long as you're talking about it, when that happened, when he was appointed in that case, didn't you say to yourself, I think maybe you did, and maybe I've already seen. Didn't you say to yourself, how in the world did they pick a guy with no prosecutorial chops to do this case?

Ashley (7:06)

That was the first thing I thought. Yes, exactly. He's got something magic. That was literally the first thing I thought. How did he end up with this gig? Because there are people in Georgia and outside of Georgia that I could imagine are racketeering experts or election crime experts or things like that. He's not it.

Mark Gergas (7:23)

Yeah, and that's. That's the problem. Sometimes when you get into these cases that are kind of contrived, for lack of a better term. This isn't a contrived case. This is a case that needs. Needs to be prosecuted. Not the least of which is because I think, I still think, and I hate to go off onto the tinfoil hat brigade, but you know, I watched Steve Bannon the other day, for instance, and I know Steve. Not well, but. And I know that he's kind of a boogeyman for. For large swaths of America, but he asks a lot of questions that I tend to. I think the defense is going to ask as well. I mean, some of those text messages to me seem so contrived. What do you guys think?

Jonna (8:12)

Oh, absolutely. That's one of the weirdest parts about this investigation, even though it's brand new. Right. But who in their right mind, we've all been doing this for a long time, who basically texts all the breadcrumbs to all the answers that any investigator could want to know on the heels of one of the most horrific, biggest, notorious assassinations in the country? Who does that? That part seems like I don't even know if he did it. Is he being paid to do it? There's a lot more to this story, and I don't like putting on the tinfoil hat myself, but there are a lot of questions you guys, in this.

Mark Gergas (8:52)

Case so far, for those who always condemn, there is a. We were talking about. You guys were talking about the fact that you've got to death qualified counsel. You also have to have counsel who have thick skins because, you know, I mean, you two have experienced, as have I, where you get identified with your client and then it's, oh, you're how many times I've defended the world's most hated person. And when that happens, you can't. You have to. It's the opposite. You've got a duty to defend. You've got a duty to zealously defend and not be affected by that. But remember, in a case like this, specifically. And then we'll talk about the David case, D4 bid. There's. To me, there's a lot of questions. And the only person who's going to be asking those questions is the defense lawyer.

Ashley (9:44)

Yeah, well, and luckily they didn't waive the preliminary hearing, so we're going to get to hear that. You know, a lot of folks don't understand what the prelim is, but it's. It's the opportunity for the defense to really find out what's going on in a case. And so they said, no, we want to have that. We want to have that hearing. And it's where the prosecutor puts up, usually their lead detective and has them testify about their investigation. And in this case, it sounds like the defense is going to get a lot of discovery before that hearing. So hopefully that's going to be A really interesting hearing. I don't know, Mark, if you heard what the judge. I think we have a sot for what the judge said, but it kind of cracked me up, and I'll tell you why. It made me laugh in a minute, but I think we've got that. That first thought.

Mark Gergas (10:23)

Perfect. Look at you playing host. Thank you. Go.

Judge (10:26)

Let me be clear. I will not put my finger on the scale of justice. These proceedings will be open to the public, conducted in accordance with the law, and handled with diligence and competence to ensure that justice is never compromised. It is the standing order of this court that Mr. Robinson shall be allowed to appear in person so he can fully engage with his attorneys and participate in these legal proceedings. Counsel, regardless of who has is watching, whether it is the nation or a single individual, we must fulfill our roles with integrity, civility, and diligence. I encourage each of you to give your very best to this case. Neither Mr. Robinson nor the people of Utah deserve anything less than the fair and impartial administration of justice.

Mark Gergas (11:22)

You know, as a little. I hate to make it sound like sucking up, but I don't have anything pending, I don't think, in Utah right now. I tried a case there about five years ago in the federal court, and I watched because my local counsel was trying cases over in the state court. It's a very impressive place for a lot of reasons. I was very favorably. My takeaway from Utah was that you get a very kind of sober, open, transparent process there. I don't know if you two have had that same experience or not.

Jonna (11:56)

No, it's sober because they take some of the alcohol out of the beer. I noticed that when I went to Utah. Did you notice that?

Mark Gergas (12:05)

The thing I never understood about Utah and the alcohol and I ended up always not drinking when I was there is because they won't serve you more than two drinks in 90 minutes. So I said, what is the point of this? It makes no sense. And if you're trying a case there, it really is. You know, how are you supposed to do alcohol therapy when you're trying a case?

Ashley (12:25)

Speak about what doesn't make any sense. Why did the judge feel the need to say, I'm going to follow the Constitution, I'm going to be impartial? One would hope. I mean, he's. Wait, what else did he say? He said he's presuming.

Mark Gergas (12:38)

He said he was not going to put his finger on the scales. Well.

Ashley (12:42)

And the state has to prove it beyond a reasonable doubt. Thank you. I'm so Glad.

Jonna (12:46)

Thank you, Captain Obvious.

Mark Gergas (12:49)

I think he's trying, you know, I don't know about you too, but sometimes when I'm selecting a jury, I'll say, can you give them a fair trial? And they'll say, yes, yes, I can. I said, but not the. And I always slam Texas. I said, not the. We'll give you a fair trial, then take you out back and shoot you. And they, you know, but I think he was trying to preemptively say that with. I'm not going to put my finger on the scales.

Ashley (13:12)

Right. And I wanted to say, do you want like an award for this? I mean, isn't that kind of your duty, your oath? I mean, sorry. Well, but you know, he's a, he's a brand new judge. He was sworn in, I think, what, 56 days ago. So, you know, he is a brand new judge and I'm sure he knew that that first appearance was going to be played and scrutinized. And, you know, I mean, it was, it was lovely remarks that were lovely remarks that we hope aren't needed to be said, but, you know, lovely set the tone. And I know what his probably telling the lawyers to behave. No, what's his background?

Mark Gergas (13:41)

I don't, I don't.

Ashley (13:42)

Oh, I don't know either. I just know he's been 56 days. So, you know, he's, he's brand new and now he's got one of the most high profile cases. You know what? This actually reminds me of Judge McAfee. He was a brand new judge and he was the one that overheard one of the highest profile cases. So, you know, hey, maybe we'll see some good stuff.

Mark Gergas (13:59)

It's so funny. You took the thought right out of my brain. I was going to ask you if you had deja vu because how long was he on the bench before you had.

Ashley (14:07)

Oh, my gosh, just a couple months. I mean, it was one of the first cases and he was great. And he, you know, I mean, I'm certainly not mocking this judge for saying he's going to be fair and impartial and stuff, but, you know, you do like it when they set the stage and they're like, hey, I'm going to make sure that everybody follows the law. And I'm like, that's what we want. People ask me all the time, what do you want from a judge? I'm like, I want them to follow the law and I don't want them to call me in when I'm on vacation. That's really. It I've got one for a lot.

Mark Gergas (14:31)

I've got one rule for a judge. Stay out of my cross examination. I don't care what else you do. You can rule against me on every motion. Just stay out of my cross examination.

Ashley (14:41)

Judge Graff said something about that you would like him. He said, hold on. He said in future hearings, he intends to only speak when I'm needed or it's necessary. And I was like, okay, that's. That's kind of what we want from you. So I agree with you, Mark. That's. That's what we want.

Mark Gergas (14:54)

Well, don't you think I want.

Jonna (14:56)

Don't you think, Mark? Sorry. This judge is like giving us a little glimpse into the future that he's going to bend over backwards to make sure that this defendant is given a fair trial because it's such high stakes. I think that's what he's trying to say.

Mark Gergas (15:10)

I think so too. And I think. I think he also is telegraphing. How's that for an old school word? The fact or predicting that he. Look, he knows that he's got a jury pool and a veneer that is going to come there prejudging this case. And so he wants to make sure that he gives a lot of latitude. I mean, this case. I mean, the prejudgment rate on this case is probably similar to ones that you only see every generation. I mean, people are gonna come in and they're gonna have an opinion whether they wanna admit it or not.

Ashley (15:45)

Yeah.

Jonna (15:45)

Oh, they are.

Ashley (15:46)

It's gonna. I mean, it's gonna come down to jury selection, if it gets that far. You know, but that's. I mean, and that's what happens in the death penalty cases. It comes down to jury selection. And, you know, part of me thinks that the state kind of tries to tip the scales a little bit by seeking the death penalty because then they get what's called a death qualified jury. So, you know, which is a much more likely to convict jury. So a lot of times in cases. Not this one, but in cases that are close, maybe they're motivated to seek the death penalty because then they can get a pro death jury, which is a juror. I personally don't. I mean, I may get slammed. I don't agree with the death penalty. I wouldn't be eligible to serve on his jury. And a lot of people don't realize that. Just if you have a belief, you know, religious, moral, personal, whatever it is, mine's legal. You know, I've seen how the sausage is made, and I know how the sausage is made. And so I don't think the death penalty is appropriate. But, you know, if you have that, you're not qualified to serve on a jury. So we're going to see super conservative jurors in this case for so many different reasons.

Jonna (16:40)

And keep in mind, also, it's not just a death penalty state. They use the. You can use the firing squad squad.

Mark Gergas (16:46)

I know. Which is one of the reasons I think the feds haven't filed anything yet. I don't think the feds want to step on the idea that they could get the firing squad on a state prosecution, because you saw where the feds came in almost immediately on Luigi in New York, because New York has different issues and does not have a firing squad. So the cynic in me says that's one of the reasons they haven't jumped in yet, because certainly they could. And interestingly to your point, when I was doing Scott Peterson, which was more than 22 years ago, when they were qualified death qualifying, one of the things I kept screaming about to judge, the late Judge Deluci was he was in the death qualification, excusing people who said, I don't believe in the death penalty. And I kept saying, judge, you have to ask the next question. Can you set that aside? And he wouldn't do that. 1600 jurors, we went through prospective jurors. The California Supreme Court reversed unanimously the penalty phase of Scott for not asking that second question, but left the conviction in place. So that kind of that legal loophole, so to speak, kind of rewards prosecutors for going over the top, asking for the death penalty. And that almost tilts the scale on the guilt phase in these cases.

Jonna (18:08)

Yeah.

Mark Gergas (18:09)

Now, speaking of conspiracy theories, D4. David. David. And this case, you know, yesterday, as we sit here in la, LAPD has been notorious. And this is the disappearance of a young lady who was. Then her remains were found in the back of a Tesla. And yesterday, the lapd, which affectionately say stands for lost and Presumed destroyed, but the LAPD announced that this car had at least been ticketed there for a number of days. And so presumably her remains were in there for well over a period of time from when people had previously fought. And there was a lot of speculation initially that she'd been dismembered. But it now looks like that the logical explanation, or at least the scientific explanation, is that there was a. It was part of the decomposition. What do you think, ladies, happened here? What's your rank speculation? And what would you be doing if you were the defense Lawyer.

Jonna (19:20)

This is. This is actually a case, I think, that a defense lawyer can stick their teeth into. There's so many questions here, though. Like, for example, first of all, we have the age issue. She apparently. The victim was apparently dating Deepor Vid. David, however you say his name. I'm so not.

Mark Gergas (19:38)

We're gonna call him David.

Jonna (19:40)

David.

Mark Gergas (19:41)

We're all dating ourselves, which is his.

Jonna (19:44)

Real name, but I'm not familiar with him at all. But apparently they were dating for a long time. He thought she was 19 years old, which is legal. She apparently was really only 15 years old, which is not. But that aside, here's the first thing that struck me. He's apparently on tour, singing, doing whatever he does. She's dead in the trunk of his Tesla. Now, why is there no. I mean, or is there text messages like, hey, babe, where are you? Haven't heard from you in two and a half freaking weeks. Like, where. There's some things that are just not adding up. So it very well. Either. Either he knows that she was dead, or they were broken up, he's on tour. But there's going to be a lot of information, or lack thereof, that defense attorney is really going to sink their teeth into.

Ashley (20:35)

Like, what did he report her missing? I mean, that's. You know, it's crazy to me. They found her body. But if they were really dating and they were together frequently, you know, did someone not report her missing? I mean, how long was she missing before they found her? And I wonder. I mean, I'm sure that they were just searching the parking lot and found her. You know, there's got to be some clues there. I think they're just holding a lot back. I think there's a lot of information we don't know at this point. But, you know, I was interested as soon as I saw it because obviously they're not giving us any, you know, any motive, but that's the first thing you think about. I wonder if he'd found out, you know, if he did do it. And I'm not saying he did, but if he did do it, perhaps he found out she was 15 and he was trying to. You know, it's stupid, because why would he put her body in the back of his own car? But, you know, maybe he was trying to get rid of evidence that they had been romantically involved. You know, we don't even.

Jonna (21:25)

We don't even know, Ashley, the cause of death. No, that's been. So maybe it was accidental. Maybe it was juggling, maybe, and somebody just puts her in the trunk, you know, so it might not even be a crime in that regard, other than. Obviously, that's kind of what.

Mark Gergas (21:40)

That's kind of what jumps to my mind is if you've got a decomposed body and now, you know, arguably over 10 days, which makes it a little bit more difficult, but at the very least, they can determine certain things. They can determine pregnancy. They can determine. They can do a tox screen. And contrary to what's being put out there, they can do a tox screen on a case like this much quicker than six to eight weeks. So when the coroner's telling them, oh, we gotta wait, and it's gonna be. We're gonna defer for six to eight weeks. Total crap.

Ashley (22:14)

Yeah. They're just not being transparent. They know they have her phone. They've looked at all this. They know all of this. They're just not being transparent.

Mark Gergas (22:20)

Speak about the phone. Tell them what they've done on the phone. Because you can. You've been. You know what they've done on the phone, right?

Ashley (22:26)

You know, they've got the phone, they've hooked the phone up to something called cellbrite. I mean, it's a forensic tool that you can hook a phone up to and you can get all of the texts. I mean, people are shocked at all of the information the government can get, but you can get all the texts. You can get everything from an app. You can get search history. I mean, if she was doing something, if she was talking to other people, they can get that. They can get cell phone location data. So her cell phone that, you know, your cell phone basically pings off of towers. So you see towers whenever you're driving around. You know, you see these big cell towers and. And wherever you are, you're pinging from the local towers. You're usually pinging from two or three different towers. And so they can do what's called triangulation, which I guess is off of a triangle. But they triangulate your location based on those towers that you're pinging off of. And they can in an area in California, a very populated area, that probably has a lot of cell phone towers, they can probably pinpoint her exact locations and what she was doing with that phone. But to me, I think the most important investigatory tool in these types of things is what was she doing? Who's she texting, as we're calling him, has a house, a party house. You know, this girl also, and, you know, I'm definitely not speaking ill of the dead, but she was 15 she is living a life that a 15 year old normally is not living. So she's doing some high risk activities. And so I would want to see who's she talking to, is she dating other people? Is she partying, you know, what's going on in her life? Because she's probably engaging in high risk activities. Not blaming her, but just saying that this would be a tool for the government to use to try and figure out what happened to her. And you know, they're looking at all that stuff they're just not telling us.

Mark Gergas (23:57)

Yeah, absolutely. Because to your point, on the phones, that's one of the first things they do. They get a search warrant on the cell phones. They will know exactly where she was, when she was. They'll know where he was. Exactly. They also will, I guarantee you have done as executed a search warrant on whoever owns that house, whoever is frequently being called. They're going to take a three week period of time before what they have pinpointed as her. They're going to do concentric circles and see what overlaps. They're going to then take that information, zero in. They will know when the phone, by the way, if she had a phone on her in that trunk or if the phone she was using stopped moving and stopped calling. They're going to use that to inform the time of death that the coroner gives. So there are so many investigative tools and if you don't think they've canvassed that neighborhood to see what was going on in that house, who else was in that house, and talk to the other people. Harvey Levin, who's my podcast partner on another show, has said his sources in the lapd. And by the way, he's got the greatest sources in the world in the lapd. I've accused him over the years of paying those sources, but that's another different argument. But his sources have clammed up, which leads me to believe that there's more going on here than just a missing 15 year old or a missing 14 year old. I think that LAPD thinks they've got something else happening.

Ashley (25:30)

Oh, I mean, think about it, Mark. That that house, you know, David's house had security camera. There's no way. I mean, everybody has security camera. Now. This gentleman definitely had security camera. He's famous, so I hear, you know, again, aging myself, but, you know, he's famous. There's going to be street cams. There's also, if you walk down the street, there's cameras everywhere. There's gonna be cameras. So the police know. And I definitely think there's something much more going on here.

Jonna (25:57)

Yeah, we had. Yeah, we had a listener. We had a listener question that's kind of on that point. If you don't mind that we should.

Mark Gergas (26:04)

Answer, please jump in.

Jonna (26:06)

Okay, so we got a question from Jillian, who is an administrative assistant at the Loudoun County Sheriff's Office in Virginia. She says there is a rumor that LAPD were aware that Celeste Rivas Hernandez was at David's house in the Hollywood Hills last year, but did not remove her and return her to her parents. If that's true, did they know because they saw her or had heard she was there, but did not see her physically when they visited the house, therefore could not confirm and remove her? Obviously, that makes a huge difference. By the way, great show. Thanks for bringing the legal world to us in such an enjoyable manner. So what do you think? Do you think the police had a hunch that she was a runaway a year ago and didn't do anything about it? And if not, why not?

Mark Gergas (26:50)

Well, look, if you grew up around here like I have, I've been born and raised in la. The Hollywood is a magnet for runaways, always has been. And there's no way that lapd. I mean, I'm not one who's always going to defend the lapd, but there's no way that they've got the time or the resources to deal with every runaway. I. If that is true, if that rumor is true, that they knew about her, my guess is, is they knew about her in connection with this house. The house is somewhat notorious as being a party house. As a notorious as a party house. What does that mean? That means the police would have been called repeatedly for excessive noise, for traffic, things of that nature. When they go there, they fill out what's called an FI card, and that is a field identification card. So they could have run across her. They could have had a FI card, that FI card. When they went and reverse engineered this investigation, they would see that somebody came in contact with her a year ago in connection with this house, and that's where that rumor probably started.

Ashley (28:00)

Well, and also they, you know, apparently a teacher reported her, and it took him a month to find her. So she wasn't exactly easily found, which, you know, you kind of wonder with a cell phone. But they just returned her home. I mean, she could have just said she was there voluntarily.

Mark Gergas (28:14)

Well, one of the things that you find is in a lot of these cases, the phones, they use disposable phones, what are what I would call a burner phone. But they're prepaid. And especially if you're somebody who doesn't have large resources to begin with. I mean, she might have once she kind of got involved in this area. But the beforehand you buy as you pay as you go. When you pay as you go. The phones are basically disposable. So that, that might explain. But they can find it out after the fact.

Jonna (28:45)

Yeah, yeah, that's true. In any event, it's a sad story. She was, you know, a teenager. Now she's dead, and we have more questions than answers. And so that's just a sad, sad story.

Mark Gergas (28:56)

It is. It is a sad story. I think it's captivated people because people want to know what's happening. I mean, we haven't even scratched the surface on the Tesla. I mean, there's all kinds of technological gadgets on the Tesla that my guess is, is that the police also have been able to, to borrow your word, triangulate. When was the car driven? What time was it driven? Where was it driven? And potentially who was driving it? Next up, Diddy and Donna. I'm going to talk a lot more about Diddy than Donna. So I'll talk Diddy as YouTube Donna. How's that?

Jonna (29:32)

We all have a lot to say about Diddy.

Mark Gergas (29:34)

Yes, we do have a lot to say about Diddy.

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Mark Gergas (31:20)

Okay, we're back for the B block, but it's really the D block because we're doing and Diddy and Donna Adelson also, as I was telling the ladies on the break, the reason I'm looking furtively to my left is because I do not have a return to look at. So that does not give you probable cause because of my furtive glances. So I'm just going to preview that. We're going to start with Diddy. In full disclosure, I've represented sean for almost 20 years on a multitude of things. In fact, just this past week, I got his mother's case dismissed. Somebody was suing on some Mickey Mouse basis. And my daughter was his is his lead lawyer. Co lead lawyer with Mark Agniphilo. And so in full disclosure, I cannot believe how ridiculous the government is. But I'll let you ladies talk about that.

Ashley (32:16)

Oh, they're insane. This is ridiculous. I mean, asking to max him out. And the thing that really makes me mad is they're asking for extra time based on conduct that they couldn't prove. That just, you know, it happens all the time. I've had clients sentenced on it. But it makes me mad because, you know, they overcharge cases and the defense has to defend an overcharged case and then they convict on scraps and they think that they should get sentenced on what they couldn't prove. And that is crap. They shouldn't. The jury did not.

Mark Gergas (32:45)

Yeah. So let me break that down just because that is a pearl of wisdom. They overcharge. The prosecution controls the courts. For anybody who thinks a judge controls it, you're naive. It's the prosecution who controls the criminal justice system. They overcharged. They took their best shot. They tried to take away his freedom. They tried to take away his entire billion dollar fortune. They lost. They lost all the counts that count. But what do they do now? They come in and they say, hey, judge, I know we overcharged. I know we lost. I know 12 jurors who sat here for six weeks rejected our theories. But we want you to use that conduct which we lost and overcharged to enhance it and give him 135 months.

Jonna (33:33)

Yeah, but they know, Mark. I think the tenor in that courtroom, at least what I was picking up is this. I know judges are supposed to be Neutral. But you guys have all been doing this long enough to know they're not always. Some, some of them do put their finger on the scale. And they do that how? Through the, through their rulings. Right. Diddy got shot down. What was it, Mark? Five freaking times on bail like he wasn't going to go.

Ashley (33:58)

No, he's letting him go.

Jonna (34:00)

He should not have been locked up for all this time. That has nothing to do with whether I think he's guilty, not guilty. He just, he really shouldn't have. And the judge could have let him go, especially after the jury came back, knocked out the top counts and really minimized this case. And then he should have been let out at least then. And for the judge to not do that, that tells me either either he's being very performative or he's going to do everything in his power to give him the highest possible sentence range he can. And that probably scares your daughter and the rest of her defense team. And it, and maybe it should.

Mark Gergas (34:36)

Well, I'll tell you what. There's, I have so many competing emotions on this because on one hand he issued, Judge Subramanian issued an order and they had a hearing, I believe, four or five days ago, where he asked five questions and he asked these five questions of, and had the colloquy with Alexandra Shapiro, who is the appellate lawyer who was actually in the trial handling this. Both she and his Honor are former Supreme Court clerks and some of the smartest people you'll ever watch in a courtroom. And he asked five questions about the constitutionality basically of the Mann act provisions. And for those who don't know, the Mann act is the transportation across state lines for purposes of prostitution, broadly speaking. But there was an argument that he did not, that Deshaun did not have sex with the escorts and he was clearly filming what was happening. And how is that any different, number one, than pornography? Number two, I always say, and they're but for the grace of God, walk eye. How many times I'm up the road at Burbank Airport, where I'm going today, flying to Vegas on a Friday afternoon. If you saw the crowd that was in the Burbank airport flying across state lines to go have sex in Las Vegas, you could incarcerate the entire airport. But he asked these questions, which judges rarely do in a Post conviction rule 29, basically what you're telling the judges, once the prosecution rests, Judge, there's not enough evidence. He had taken that under submission. One of the interesting things, and why I say I have mixed emotions, it hasn't been widely reported. His other previous criminal trial before this case, he waited until after that person was convicted. He vacated the conviction in that case and granted the Rule 29. He's in that same position potentially here. He did it a week before sentencing. He brought the lawyers and Shawn into court. He asked the government these questions. The government is now asking for over. For basically 11 years, about the same length of time that Sean was involved with Cassie, ironically. And that's what they're asking for you also, and I'd love to hear your say. I always feel like if when the government goes so overboard, are they afraid that he's going to embrace the defense request for 14 months and hoping that he kind of cuts the baby in half?

Ashley (37:17)

Split the baby? Yeah, I think they're always trying to. Trying to split the baby, and I think that's the problem. You know, the defense essentially wants him out almost on time served. And so if the state asked for a ton of time, I mean, if they'd asked for five years and he splits the baby and what's it going to be? 2 and a half years? And I think that that always factors in. And I hate that that factors in because I hate that the prosecution always asks for more time. It's like they forget that they're talking about a human being's life behind bars in barbaric, you know, situation. I mean, our prisons and jails are awful. I don't think anybody can dispute that they're awful. And so you're talking about taking a human out of society. And it's like they just arbitrarily pick a number. Oh, well, we think it's going to be in the middle. So we're going to ask for more time so that when he splits the baby, we'll get, you know, five years. That is a long time. That is a very long time. Eleven years behind jail, behind bars is an extremely long time. And I know people are mad and they don't like Diddy and they don't like what he did. But, you know, you got to look at the facts. You got to look at what they could prove, what he was convicted of. And the letter, you know, the letter that they attached from Cassie from one of his accusers says basically she wants him kept behind bars because she's afraid of what retribution will happen. Well, you know what someone with Diddy's means. If he was going to do some type of retribution, he can do it from behind bars. I mean, I think that's a ridiculous reason to keep someone in jail, you know, there's ankle monitor, there's tons of different things that can be monitored. Put someone out, you know, put them out in society, have monitored. That's what probation is for. That's what supervised release is for. You know, give him a chance. Don't say, oh, well, I'm afraid he's going to have retribution. And so therefore I think you need to lock him up and throw away the key. And I mean, we're talking about a federal shutdown right now. Federal prisons are expensive. Cut the guy a break.

Jonna (38:53)

Well, I don't think this judge has the balls to cut this guy a break.

Ashley (38:57)

I don't think he does either.

Mark Gergas (39:00)

I like him. I liked his thoughtfulness. What bothers me about this case and has bothered me about this case is this case seemed to be civil driven. And what do I mean by that? The civil lawsuit, the failed mediation, the Adult Survivors act, the. The basically the lawsuit that was filed by Cassie, which was the blueprint for what the Southern district adopted. And now there's this argument that, oh, I'm scared. Well, you weren't scared when you cashed the $20 million check. You weren't scared in the years since then, to the point where you made a police report. By the way, in the 11 years that you were with him, you never called the police once, except at one point when a neighbor called the police. So there's a little, I mean, talk about performative. I mean, there's a little much. And then when you have one of the named so called victims and one of the themes of this case was nobody ever called the police. It's like, why? Why was nobody ever calling the police if you were so scared? And now in retrospect, you are when, by the way, you're filing lawsuits. I mean, one of the letters was from somebody who had testified in the trial. They had no financial motive. As soon as he was acquitted, they filed the lawsuit. So you tend to, you tend to be a little skeptical if you're me.

Jonna (40:27)

Except Mark, we did see the video. Like, he kicked Cassie's ass. Like, that's not okay. He wasn't tried for that. But that's not okay. So I can't get past that. And you have to promise me one thing, because my closing argument is about Diddy and I want us to still be friends when I'm done with my.

Mark Gergas (40:45)

That's okay. You know what I might do? I'll do what I always say. I don't care what your closing is, just give me the rebuttal.

Jonna (40:52)

There you go. There you go.

Mark Gergas (40:54)

Either let me pick the jury or give me the rebuttal. It's one or the other. And I. I'll deal with it. What about if we've plowed enough ground or I've gotten myself or my daughter in trouble on Diddy? Why don't we move to Donna Adelson, which I have absolutely no connection with. So I'll leave it to you two to bring us up to speed there.

Ashley (41:14)

Well, there's not a lot going on. She's asked for a new trial, which, you know, that's pretty typical. I mean, that's, you know, for those that aren't familiar with the appellate process, the first step is you have to ask the trial judge for a new trial. And so that's what she did. And that's just saying that she's starting the appellate process. And, you know, it's not super surprising that she didn't win because what you're asking in these types of motions is you're asking the judge to rethink their decision. And if there's one thing judges don't like to do, it's to decide things. They really don't like to decide things twice, and they really don't like to change their mind on what they've already decided. So, you know, asking him to revisit and, you know, re rule on some things, some evidence, not really going to be successful. So it's not surprising. But now it just means that we're going to get to the appellate stage.

Mark Gergas (41:54)

So I have a question for you too, because I thought of this and I commented on it the other day about Jim Comey. You saw her defense lawyer in this case, right?

Jonna (42:05)

Yeah.

Ashley (42:05)

Oh, yeah.

Nikki or Bri (42:05)

Oh, yeah.

Mark Gergas (42:06)

Okay. You don't seem to be jumping up and down. Is it my imagination or this was an ex judge who had never defended a case before is that she was an ex judge.

Ashley (42:16)

Now she's been doing defense work for a while. She was removed from the bench, and I mean, she was definitely disgracefully removed from the bench. Yeah. So she used to be a judge and got in some trouble and so no longer is a judge. And she, you know the area, it's in Tallahassee, and I'm very familiar with that area of Florida. We have a place in St. George island, which is pretty close to there, about an hour from there. And she actually was practicing at a place called Wakula, which I'm sure most people have not ever heard of. Wakula is a very tiny, tiny place on a river. And you know, so you got to think about. It's not like super high profile types of cases. So I'm not sure if this was 100% in her wheelhouse, but Donna had gone through some lawyers, you know, some of the lawyers that she had chosen had, had, you know, bowed out of the case. They had conflicts. And so this is, you know, she had local counsel.

Jonna (43:03)

Either she was a rough client or she ran out of money. One of the two. But her attorney would not be my attorney if I ever got in trouble.

Mark Gergas (43:12)

I mean, I hate second guessing, but I'm going to second guess.

Ashley (43:15)

I know.

Mark Gergas (43:15)

I mean, it's. It was. And especially. And like I say, this is rank speculation. I'll preface it. If in fact she had turned down time served, and I know that I've had this argument with Dave, but it just. To go from time served to, you know, life is quite a gamble.

Ashley (43:39)

I don't believe that woman turned down time served. Not for a minute. You know, not for a minute. I mean, that's. Yeah, like, not with all the evidence, but.

Mark Gergas (43:45)

Yeah.

Ashley (43:45)

You also have to think that she probably was a difficult client. And sometimes we're, you know, we can't change the facts. I mean, as good as we are, we can't change the facts and we can't change a lot of times what our client wants us to argue or sort of forcing, you know, forcing our hand on. And so we may have seen some of that.

Mark Gergas (44:01)

Just stay tuned for Jim Comey because I've got quite a bit to unpack there.

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Nikki or Bri (45:21)

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Mark Gergas (46:24)

I've got my two favorite contributors. Apologies to the rest, but we're gonna talk. And at my back has Jim Comey because we were just talking about Diddy. And the lead prosecutor in the Diddy case was none other than Maureen Comey, who is Jim Comey's daughter who was fired right after that trial. Her husband ended up resigning. Who he was in the same office in the Southern district and apparently the Jim Comey's son in law was a lawyer head of the national security division in the Eastern district where he was just indicted. And so it's quite a family or internecine doj, wouldn't you say, ladies?

Ashley (47:11)

It's a lot of, a lot of comeys. Yes, a lot of comeys.

Mark Gergas (47:17)

How many comeys to prosecute?

Ashley (47:18)

A lot of comeys getting government checks.

Mark Gergas (47:20)

Exactly. You know, one of the, one of the interesting things, I'll throw it to you two to talk about that I haven't seen reported all that much. There were originally three counts presented to the grand jury by the former Trump personal lawyer. Now either U.S. attorney or Acting U.S. attorney in the Eastern district who apparently personally went in and presented to the grand jury and the grand jury did not indict on all three counts. They, they did not indict on count one. So count two and three they did indict on which then became the new counts 2 and, or 1 and 2 and. I thought that was interesting. Ladies, what did you think about that.

Ashley (48:02)

That is super interesting because that tells you that they actually heard evidence on that one count. You know, I think that actually solidifies the evidence on that one count. If you have a grand jury, which let me just explain to our viewers, they indict a ham sandwich, I can tell you they will. I've had them indict clients that had been deceased. I've had. I had a case once. The lawyer, the defense lawyer was listed on the indictment.

Mark Gergas (48:24)

You've had. You've had a deceased client, a dead.

Ashley (48:28)

Client who was indicted. I used to say died.

Mark Gergas (48:31)

That's one of my great jokes. Is the probable cause standard is, is my client still breathing?

Jonna (48:37)

Except it is not.

Ashley (48:38)

It's not even that. And no, you'll like this one even better. So when I was at the public defender in Fulton county, we actually had one of the public defenders name on the indictment. Indictment.

Mark Gergas (48:47)

It.

Ashley (48:48)

It was the lawyer for the client, but actually indicted with the client. Come on. I mean, that's how bad it is. So. So. And I give that as just a backdrop for, you know, they will. Will really indict a ham sandwich. So the fact that they did not indict on two counts, that means there's nothing on those two counts personally.

Mark Gergas (49:04)

But on that one count, one count, yeah. And they indicted on two. They didn't.

Ashley (49:08)

But that one count that they indicted on, that tells me there's evidence on that count.

Jonna (49:13)

Well, plus, Jim Comey is a lion sack of shit. So I'm glad he got indicted for the two counts that he got indicted for. And the process works. If you don't have probable cause, then grand jury is going to come back and say, we're not going to have a. We're not going to indict. So this is the process working the way the process should. I'm happy with it.

Ashley (49:30)

And I'm just glad that they didn't hire a special prosecutor and pay him $1 million to get an indictment.

Mark Gergas (49:35)

Well, guess who did. Guess who did they call me, if you believe the reporting, has hired Patrick Fitzgerald, who was famously a Special Counsel X U.S. united States Attorney. And this goes back to what we kind of touched on, just briefly. I touched on. It's an odd choice, I think, for Jim Comey, whose daughter has tried cases repeatedly recently, and Jim Comey, if I'm not mistaken, who presided over the Martha Stewart prosecution. But I don't know if he understands that federal criminal defense is not just being a prosecutor, which is shooting fish in a barrel. And if he thinks he's going to get Any swack. I mean, the idea of having an ex, a United States attorney, that's great for clients who think, oh, they never left the office, they're going to cut me a deal. He's not cutting a deal in this case.

Jonna (50:36)

No.

Ashley (50:37)

Yeah, there's no insider trading here.

Mark Gergas (50:39)

Yeah, exactly. You want a federal criminal defense lawyer who will take your case. Speaking of which, you know that might.

Ashley (50:46)

Be part of the problem, right?

Mark Gergas (50:47)

Yeah, there might be a lot of criminal. Federal criminal defense lawyers who, unlike Tyler Robinson, won't give a defense. Yeah, it's wild. So I'm going to do what I promised to do before I'm going to give the rebuttal here. Johnny, you guys, are you first up for your closing rant?

Jonna (51:06)

I think we have to have Ashley go first if you're going to rebut me. She'll go after her, I'll go first.

Ashley (51:12)

And then I'll get my popcorn for you two talking, fighting about Diddy, and I will. Let me guess, I will not talk about Diddy then. I'm not touching that argument. So what I thought I would do is I want to kind of walk through the process every time I'm on and talk for a minute about a different step of the process and rant about that process. So I'm going to try now. I'm going to start from the initial arrest, and I'm going to use the David case as sort of an example. We talked about it today. If you look at what we know, we know what the government has released, we know what information they've shared with us. I want you to imagine being a defendant or being a defense lawyer and saying, you know what? I probably have security cameras. I have text messages. I have all this information that can exonerate me. But guess who has it all? The government. The government has it. And so, you know, you are being speculated against. David's being speculated against. He doesn't have access to all that information because the government seizes it and the government takes control of it. And so the government is only going to release what information they want released. So we know in the news what little snippets they want us to know about. And that always paints a very, very different picture than reality. And so, you know, this, this lack of transparency early on in cases, it frames where we think cases are going to go, and it frames our entire criminal justice system. We immediately make judgment calls based on what we hear first. And the police are putting out information that may not be accurate information. And we see this happen all the Time. I've had cases on here where I've talked about it, but, you know, that's something that we can see in this David case. We're speculating that he probably did something, maybe did something, and the poor man doesn't have the ability at this point to get the data to defend himself. And so, you know, I want to just sort of every week walk through the process, but the first process is arrest. And, you know, we should, as defense lawyers, be able to get access to the other side's phones. We should be able to get immediate discovery. We should be able to get police reports. And right now, our system does not allow it. And so I'm hoping that when you listen to all my rants about how the system is stacked, you'll quickly understand that guilt beyond a reasonable doubt is only a trial level standard and only comes in at the very end.

Mark Gergas (53:13)

It's so true. And by the way, I could do a rant if I wasn't going to rebut Jana about the fact that protective orders or gag orders are precisely have turned that standard its head. That used to be to protect the defense. Now all it is is to solidify law enforcement leaks. But that's a different subject. Jonna, you're up next. I'll give you, I don't know, 55 seconds. How's that?

Jonna (53:40)

Have to give me a minute. Oh, hang on. I got to put on my glasses. All right, Mark, just remember, we're still friends, okay? All right.

Mark Gergas (53:49)

As long as I've got rebuttal, there's nothing you can say in a minute.

Jonna (53:52)

All right? You got it? Got it. Okay, so, Sean Diddy Combs is set to be sentenced this Friday following his conviction after trial, which concluded on July 2nd of this year. Predictably, the rapper beat the rap on the top counts of racketeering and sex trafficking, which could have netted Diddy an opportunity to write lyrics on a bar of soap with the dull end of a spork for the rest of his life. Instead, he was convicted of two counts of transportation to engage in prostitution, an offense that, all things considered, measures about a meh on the egregiousness scale. Was this the win for Diddy?

Ashley (54:30)

Sure.

Jonna (54:31)

Diddy's team did a great job. And while I appreciated the novel defense argument that the prostitutes who were flown to and from the now infamous freak offs were only compensated for their time and not for sex, that argument didn't land with the jury or me. After all, what do prostitutes do with their time? Recite poetry? Deliver TED talks? Cure Cancer? I mean, come on. While Diddy's win in a court of law is well deserved, Diddy is still a dirtbag. And for that reason, the verdict in the court of public opinion will not be as forgiving, since Diddy is likely to soon emerge from the hallowed cement halls of the Metropolitan Detention center, where a failure to pony up a cup of soup could later compel a very painful cavity search. I have a few PR tips for the rapper, which I'm calling quite simply, diddy don'ts. 1. Don't even think about bursting forth in some I'm a Martyr comeback tour. You're not a martyr. You're a misogynist. And while you were never tried for beating the crap out of your ex girlfriend Cassie Ventura, you still did it. We all saw it and we can't unsee it. And that act of unmitigated violence is like a case of reputational herpes. It ain't going away. If you want to right that wrong, quietly donate a shit ton of money to organizations that help battered women rebuild their lives. Or better, donate to programs that help prevent it in the first place. Shocker. But not every woman who suffers abuse is getting beat up by a billionaire like you. Help them shut up and write a check. Two, don't come out with a new record all about your jailbird era. Spare us lyrics that include secret messages to the cellies with whom you shared a toilet. We don't want to hear it. And three, whatever you do, do not get your freak off back on with a line of merch. Do not hawk luxury towels, sex toys, or God forbid, your own line of lube. I'm sure Johnson and Johnson misses the added revenue, but you may want to think about taking a small break from debauchery and finding a wholesome habit to hold you over during your post release supervision. Maybe all those prostitutes you paid for their time can teach you a hobby like, oh, I don't know, Bingo. Anyone? You still with me, Mark?

Mark Gergas (57:03)

I am. But I'll give you I've got a different point of view here. To quote my grandbaby Mama, AKA my daughter, if he was on trial for the beating of Cassie, you wouldn't. There wouldn't have been a trial. He was tried for basically the. The ball game. He was tried for all of his net worth. That's what a RICO involves. And he was tried for sex trafficking, which is for the rest of your life. So he gambled. He gambled and he won. He is not going to lose his fortune. He's going to get released at some point. And in the federal system, they have sentencing guidelines. They're not binding. They used to be. They're advisory. And one of the things that the sentencing guidelines say is if you plead and don't go to trial, it's kind of this unspoken incentive. If you don't go to trial, you then get three levels, two or three levels for acceptance of responsibility. If you go to trial and you lose, you not only lose those three levels, but they inevitably tack on two more levels if you testify and say you obstructed justice. So that's quite a swing. Five levels. I'd like to propose something to the people who write the sentencing guidelines. I'd like to say when the prosecution takes their best shot at you and you double down and you go to trial and you win, I think the prosecutors should be foreclosed from asking for anything along these lines. And you should get a 10 level departure downward because if you can get penalized up to five levels up, you should get double that on the way down. 10 levels downward departure for going to trial, risking your life, risking your fortune and winning. It's my humble opinion. Thank you, ladies. This was as fun, as much fun on mk. Don't call me MJ True crime as I have had so far. So hat tip to the ladies.

Ashley (59:16)

It was great time.

Jonna (59:17)

Thanks, Mark. Same here.

Judge (59:22)

Hey everyone, it's me, Andy Cohen. Buckle up because I have a podcast called Daddy Diaries where I take my listeners on an as it happened recount of life as a daddy to two kids, dozens of housewives, and the occasional fella. Listen to the Daddy Diaries to hear about my high highs and low lows of parenting, housewives, drama, and so much more. Daddy Diaries available wherever you listen to podcasts.