News orgs want Diddy's 'Freak Off' videos unsealed as testimony begins in trial
The federal sex trafficking trial asks jurors to decide if the powerful celebrity's use of his companies and employees to facilitate his exploits constitutes racketeering.
News organizations want the judge in Sean “Diddy” Combs’ criminal trial to keep the courtroom open to the public when videos of his so-called “Freak Off” sexual exploits play for jurors.
If U.S. District Judge Arun Subramanian says no, lawyers at Davis Wright Tremaine LLP want him “to designate three pool reporters to watch and listen to the video exhibits as they are being shown,” according to a letter filed Monday.
“The News Organizations recognize that the videos are sensitive and that some or all of the alleged victims or other participants in the Freak Offs may have meaningful privacy interests,” the lawyers wrote. “But given the central role that the videos may play in the determination of Mr. Combs’ guilt or innocence in this case, those privacy interests cannot overcome the public’s powerful First Amendment interest in monitoring the judicial process.”
I saw a similar issue in the federal death penalty trial of serial killer Joseph Duncan in 2008 in Boise, Idaho.
Prosecutors wanted to close the courtroom when playing for the jury three videos of Duncan torturing a 9-year-boy, and for the testimony of the boy’s younger sister.
U.S. District Judge Edward Lodge said the videos would be shown in open court, but he ordered the courtroom closed for the sister’s testimony and said the court would give reporters a transcript.
The 9th Circuit U.S. Court of Appeals rejected an appeal from the lawyers for the newspaper where I worked, The Spokesman-Review, but the girl never testified. Instead, Duncan, who represented himself in trial, allowed a video of her police interview to serve as her testimony. The boy’s father was irate that the judge didn’t close the courtroom for the torture videos. I was assigned to listen to the trial and live tweet it on the paper’s new Twitter page, but the judge cut the audio when the videos played and I didn’t go in the courtroom because we had another reporter in there. Instead, I stood outside the courtroom as the boy’s father cursed at anyone who walked in and told them they shouldn’t be there.
I found a quote from the paper’s managing editor in 2008 that could be used today to argue against closing Combs’ trial for the Freak Off videos.
“We believe that the public and the news media have a right to know and see the same things the jury will hear and observe in the courtroom.”
In Combs’ case, Monday’s letter from Davis partner Robert Balin and associate Alexandra Perloff-Giles in New York City says “[t]here is a strong presumption of public access to all judicial proceedings.”
“But ‘the public has an ‘especially strong’ right of access to evidence introduced in trials,’” quoting a 1995 2nd Circuit U.S. Court of Appeals ruling.
The letter cites a 1982 U.S. Supreme Court case that says criminal trials “in particular warrant public access, both because ‘the criminal trial historically has been open to the press and general public,’ and because ‘the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole.’”
“The indictment alleges that physical and sexual abuse was common at the Freak Offs and points to videos filmed by Mr. Combs of alleged victims engaged in sex acts with commercial sex workers, while the defense contends that the recordings merely capture the ‘swinging’ lifestyle. The News Organizations should be permitted to view the videos for themselves and describe their contents to the public. Open proceedings will give the public ‘confidence in the administration of justice,’ ‘a more complete understanding of the judicial system and a better perception of its fairness,’” according to the letter, quoting the 1995 2nd Circuit case.
The letter was sent on behalf of ABC News, The Associated Press, Business Insider, CBS News, The Wall Street Journal, National Public Radio, Inc., NBCUniversal News Group, Newsday LLC, The New York Times Co., the New York Post, Reuters, New York Magazine and The Washington Post.
You can view a PDF of the letter here.
Judge Subramanian already is allowing Diddy’s alleged victims to testify under pseudonyms. His former girlfriend Cassie Ventura will testify under her true name.
Her lawyers opposed the request to unseal the videos in a four-page letter filed late Monday that said they’re unaware of “any authority … granting this unprecedented request in a sex trafficking case to unseal videos depicting coercive sex acts.”
They said the right to public access is “outweighed by the privacy interests of Ms. Ventura and others depicted in the videos.”
“Making the sexually explicit Sealed Videos public will effectively punish Ms. Ventura for testifying and re-traumatize her as the public will watch her abuse when she was at her most vulnerable,” according to the letter. “It would be profoundly unfair for Ms. Ventura’s brave choice to testify publicly and using her own name to require such a gross invasion of her dignity.”
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Unsealing the videos also “will jeopardize the identities of individuals who are not testifying at this trial and may implicate potential confidential/pseudonymous witnesses.”
“As the government has already explained in its opening statement in this case, the Unsealed Videos depict individuals, including those other than Ms. Ventura, nude, intoxicated, and engaging in sexual activity,” according to the letter from Douglas Wigdor.
Wigdor said Ventura will testify about the contents of the videos in open court.
The unsealing request cites a 2019 2nd Circuit ruling in Virginia Guthrie’s lawsuit against Ghislaine Maxwell over the Jeffrey Epstein sex trafficking scandal that unsealed a summary judgment record, but Wigdor said that and other cited cases “are inapposite and have facts entirely distinguishable from the unique circumstances of this case.”
The request emphasizes that the news organizations do not want copies of the videos, only to see and watch them, but Wigdor cited Ventura’s anticipated testimony that Combs manipulated her by threatening to publicly distribute videos of her.
“Unsealing these videos would therefore essentially allow the media to carry out the very threats that Defendant held over her,” according to the letter.
You can view a PDF of the letter here.
The request comes as the expected two-month trial began Monday with opening statements and testimony from two witnesses. Combs is charged with racketeering conspiracy, two counts of sex trafficking and two counts of transportation for prostitution. The case is about whether the women consented to a so-called “swinger” lifestyle as Combs’ lawyers say, but it’s also on a broader scale about whether the power Combs amassed and used to facilitate his sexual exploits constitutes a racketeering conspiracy and is organized crime.
Assistant U.S. Attorney Emily Johnson gave the opening statement for the government. Combs’ lawyer Teny Geragos gave the defense opening statement. The first witness was Los Angeles police Officer Israel Florez who worked security at the InterContinental Hotel in Los Angeles in March 2016 when Combs beat Ventura in a hallway. CNN published hotel surveillance video of the assault last year, and video was entered into evidence and played during Florez’s testimony on Monday.
Combs’ lawyer Brian Steel, rapper Jeffery “Young Thug” Williams’ longtime lawyer, cross-examined Florez. I noticed a tweet that indicated Steel tried to do what he constantly did all the time in the YSL gang racketeering trial in Fulton County Superior Court in Georgia last year, which is testify through his questions, but Judge Subramanian sustained prosecutors’ objection.
According to reporter Matthew Russell Lee of Inner City Press, Florez testified Combs offered him cash for the video, but Florez told him he didn’t want it. Florez also testified he recorded the video on his own phone to show his girlfriend, and jurors saw two recordings with his own commentary, including about how shiny Combs’ shoes are.
The second witness was a man who identified himself as a male stripper or dancer and testified Ventura paid him $4,000 for sex, and Combs watched.
Testimony continues Tuesday in Judge Subramanian’s courtroom at the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan. I won’t be there, but I may visit New York later in trial to watch a day or two of testimony.
The Southern District of New York allows only credentialed reporters to access the press room, which has live audio from the courtroom and allows you to update social media during proceedings.
I experienced this firsthand when I went to New York in January 2022 to cover Michael Avenatti’s trial for defrauding Stormy Daniels. I stayed for two weeks, got one of the public seats in the courtroom each day, took notes by hand and updated social media at the end of the day after I left the courthouse and got my phone out of lockdown. It worked and was a great experience, but Combs’ trial is much more high profile and the demand for public seating is far greater.
As I said on X / Twitter today, I didn’t feel like flying to New York and sleeping on the sidewalk outside the courthouse alongside paid line sitters (money can get you anything but a soul) only to still maybe not get in the courtroom. But the trial may go into July, and I should be able to get over there for at least a little bit of it.
Meanwhile, I recommend following Lee for live updates from the courthouse. I also like Ben Kochman’s reporting and writing for the New York Post. There are a lot of reporters at the courthouse doing great work, and they deserve your readership.
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I’m covering another trial on TikTok and YouTube: Karen Read’s murder re-trial in Norfolk County Superior Court in Denham, Massachusetts. If you are interested in trials and particularly law enforcement, you need to run and not walk to my YouTube channel and catch up.
Prosecutors say Read was drunk when she struck her boyfriend, Boston Police Department Officer John O’Keefe, with her Lexus SUV outside Boston Police Department Detective Brian Albert’s home early on Jan. 29, 2022, and drove away.
Read’s defense is that Albert and Brian Higgins, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, killed O’Keefe, and she’s being framed as part of a broad Massachusetts law enforcement conspiracy.
Read’s first trial last year ended in a mistrial after the jury deadlocked, though jurors later revealed they voted to acquit on the murder and the leaving the scene charge but were deadlocked on manslaughter. Now an alternate juror from the first trial who is a licensed lawyer in Massachusetts is an official member of Read’s defense team.
Read’s lead lawyer is Alan Jackson, the former assistant head deputy of the Los Angeles County District Attorney Office’s Major Crimes Unit who is a partner at Werksman Jackson & Quinn LLP.
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The case has a cult-like following, and a couple hours in, I could easily see why. It’s like an Elin Hilderbrand novel with a very Northeast setting at all times, from the Nor’easter blizzard to the son who got his tooth knocked out by the hockey stick to the Bostonian accents. The defense is a wild rabbit hole, too, and it encompasses important issues regarding the integrity of both law enforcement officers and criminal defense attorneys. It’s an A+ trial.
I am streaming live every trial day (it typically begins at 9 a.m. EST / 6 a.m. PST), and I’m posting highlight videos separately. If you check my channel homepage throughout the day, you will see new videos of the most important testimony so far, with descriptive summaries to help you understand what’s going on.
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