It’s Even Uglier Than We Expected

Dear Reader,

By now you’ve probably seen the jaw-dropping indictment of Sean Combs (also known as, well, about a hundred different things; we’re just going with “Combs” here). The details are, shall we say, vivid: “Freak Offs” (it’s capitalized in the indictment), firearms with defaced serial numbers, thrown vases, a thousand bottles of baby oil and lubricant, Molotov cocktails tossed into cars. While graphic details of wild sexual excesses predominate, the case is more serious than that, as it turns on Combs’s allegedly routinized abuse of his victims.

There’s much we don’t know for sure at this early juncture, of course. But we can glean important insights through a close reading of the documents and other materials that are available so far. This is in my wheelhouse; I was a prosecutor at the Southern District of New York (which is handling the Combs case), and I charged and tried complex international sex trafficking rings. Let’s dig in.

Bail. This is typically the first skirmish in any case, and Combs’s team suffered a tough loss in their initial court appearance. Combs offered up a massive bail package worth tens of millions of dollars, and the SDNY prosecutors were unimpressed. No matter how much money he might offer up, they argued, Combs remained a danger to the community and a risk of flight. A magistrate judge (who typically handles initial appearances but will not preside over the case itself) agreed, for now, though the issue isn’t yet settled. Combs will next ask the district court judge (who will handle the case from here on out) to reverse course and let him out.

The stakes here are enormous. Obviously, no defendant wants to be locked up for months (and maybe more than a year) awaiting trial. The federal lockups in New York City – I’ve been in both, one in Manhattan and the other in Brooklyn – are hot, filthy, overcrowded, and brutal. Making matters worse, it’s substantially tougher for a defendant to meet with his attorneys and prepare for trial if he’s behind bars. And while a trial jury technically isn’t supposed to know if a defendant is locked up during trial, trust me: they know. (The U.S. Marshals milling around the courtroom tend to give it away).

Racketeering charges. Racketeering (or “RICO”) charges are a cheat code of sorts for prosecutors. Don’t get me wrong; I lived off these charges when I was an organized crime prosecutor, and they’re fair play. But, man oh man, RICO laws allow prosecutors to absolutely pour it on. At its core, a racketeering charge means the defendant was part of an organized enterprise that committed a series of crimes. And here, that criminal enterprise allegedly did it all: guns, drugs, assaults, prostitution, arson, threats, obstruction, and more.

It’s tough to gauge the strength of the prosecution’s evidence from an indictment alone – naturally, as the indictment is the prosecution’s one-sided recitation of its own allegations. But valuable hints emerge from the documents that have hit the docket so far.

First, prosecutors have and intend to use the hotel surveillance video of Combs viciously assaulting one of his victims. (This footage became public earlier this year, and you’ve likely seen it aired on tv.) While assault is not one of the charged crimes – it’s a state crime, not federal – Combs’s alleged use of violence is a core part of the RICO charge, and almost certainly will be admitted against him at trial. And then we’ve got the victims. During his press conference, U.S. Attorney Damian Williams was asked about the number of victims in this case. He responded, unhelpfully, “multiple.” What does that mean? Two? Seven? Eighty? But we got more detail from the prosecution’s memo seeking to have Combs locked up before trial: “dozens of victims and witnesses.” I can understand how a skilled defense lawyer might undermine one victim, or maybe even a couple. But “dozens” – that’ll be tough.

Possible sentence. Here’s an insider’s tip: whenever you read about a new criminal case, ignore the maximum and focus on the minimum. Sure, maximums are the big, gaudy numbers – 20 years or 175 years or, in this case, life. But nobody gets anywhere near the max penalty, other than murderers and repeat violent offenders.

The real hammer is the minimum sentence. Not all crimes carry a minimum, but the forcible sex trafficking charge against Combs does, and it’s a hefty one: 15 years. That means, if he’s convicted on that count, he gets at least 15 years, no matter what. And in the federal system, convicted defendants serve 85% of their sentenced time, with a maximum possible deduction of 15% for good behavior in prison. There’s precious little in-between here. Either Combs beats the case, or else he’ll be behind bars until he’s nearly 70 years old, at least.

Trial. The vast majority of federal cases – typically over 95% – result in guilty pleas. But this one seems overwhelmingly likely to wind up with a trial. The key to any plea deal is compromise. And I just don’t see that from either party’s perspective. Combs has too much to lose, reputationally and in terms of bottom line penalty. And the prosecution has clearly taken a hard line, right off the bat, seeking to deny bail and have him locked up as a preventive measure. Also important: Combs can afford to go to trial. It’s a sad truth that it’s wildly expensive for any defendant to pay his lawyers to go to trial. I know elite private sector attorneys who charge half a million dollars (or more) to take a case all the way to a jury. Many defendants can’t afford it, so they plead guilty as a practical last resort. Combs has no such limitations.

The Defense. Of course we don’t yet know precisely how Combs’s lawyers will defend him. For now, they’ve proclaimed his categorical innocence, as any prudent defense lawyer would do. Combs, it’s worth noting, has top-shelf defense counsel; his lead lawyer, Marc Agnifilo, is a former federal prosecutor and an elite defense attorney. (I know Agnilfio indirectly, through mutual friends and colleagues.)

It’s a bit of a misnomer to suggest that any defendant needs “a defense”; it’s always the prosecutor’s burden to prove the case beyond a reasonable doubt. Any defendant can sit back and try to poke holes, without necessarily offering a full defensive counter-narrative. That said, I can already see the defense taking shape. It amounts to, in essence: He’s a sex freak, but he’s not a criminal. This won’t be pretty but look for Combs’s team to argue that the women who had sex with him did it for their own reasons – money, career, attention – and while the whole thing was unseemly and over-the-top debaucherous, that’s not a crime. I’m not telling you this defense will win the day. I am telling you to watch for an argument along these lines.

We’ve got a long way to go and, heaven knows, we’ve seen shocking results in other cases involving powerful entertainment moguls charged with serious crimes of sexual violence; both Harvey Weinstein and Bill Cosby eventually had convictions thrown out by state-level supreme courts. So we can’t make predictions yet. But given what I know about the SDNY and its racketeering and sex trafficking prosecutions – the outlook for Combs is bleak.

Stay Informed,

Elie