I'm Laura Coates, and this is Trial by Jury, and we've got a lot to get to today because the word jury is now top of mind. A lot has happened this week. I wanna get right into what went on, not only with the juror who was dismissed but also the fact that the prosecution is now preparing this case to go to the jury. My partner in court, Elizabeth Wagmeister, was there along with me today watching it all unfold. Let's get right to it. Tell me your takeaway.

'Laura, I know that you know this. Sometimes the most boring witnesses on paper are actually some of the most significant. And I'm really curious to get your thoughts again as an attorney and as a former prosecutor about this summary witness who has been on the stand now for two days, this special agent who has shown this chart with 71 items, each item reflecting a hotel stay or flight records. You know, from my perspective, this could be key to the prosecution's case. You remember that in opening statements we heard from the prosecutors, you will see flight records that confirm that Sean Combs was transporting male escorts for the sole purpose of prostitution. Now, of course, this summary witness, they are serving a purpose, at least the prosecutors hope, of not just showcasing that charge. They are hoping that these flight records and hotel records also prove sex trafficking, that he was sending Cassie over state lines, that he was booking hotels where the prosecutors say that Sean Combs was forcing or coercing Cassie into having sex, having these freak-offs. And also, they're hoping to prove racketeering through this summary witness because it's not just the flight records and the hotel records that this witness has shown to the jury. It's also text messages that show how involved people like Kristina Khorram or people like D-Roc were in Sean Combs's life, that they were constantly texting with Cassie, texting with Jane, but also helping to make arrangements, sometimes with a travel service, for, again, these flights and these hotels, or that they were texting with assistants to set up these hotel rooms for the freak-offs. This case is not black and white. We have been saying that from the beginning, but again, from my perspective as a reporter, it feels to me like they have made headway in showing, at least some, again, headway is the word I will use. I'm not saying that they've proven these charges, but it seems like they are getting closer by having these actual records. So tell me what you think, because again, you are the attorney here in the room. You are the smartest person on this podcast. It's certainly not me. So I'm dying to hear your thoughts. Was this a smart witness for them to call? And was this a smart witness for them to call so late in their case when they are about to rest their case?

'Oh, if you think I'm going to say that you're not smart or smarter than me, you are sorely mistaken, my friend. Nice try, nice try. But let me answer in part by explaining a little bit about what a summary witness really is supposed to do. Their job is really to distill large swaths of information and put it in these charts so that the jurors have something tangible to look at when they go back to deliberate. They've heard so many things. There's been so many references. The prosecution wants there to be some chart, some organized, color-coded-esque system, even though it's not color-coded, but some sort of system where they can refer to it. They picture that deliberation room where someone goes, well, look, there was that one text message, and someone, rather than flipping through their notebook and looking at their poor penmanship, they have it someplace. They can constantly reference it and then go back. It almost becomes a memory index for the jurors. And so, you're right to think about how something can be so mundane as a chart or a witness who doesn't have firsthand knowledge, doesn't have the prosecutorial or the defense strategies in mind, just really summarizing information and compiling it in a way that it's reader and user friendly. They can serve to be the vehicle of that phenomenon of primacy and recency. You know, you remember the first thing you heard; you remember the last thing you heard. Well, guess what, everything in the middle might be a little jumbled or harder to remember. So this chart, that summary witness, gives you that boost of memory that you need to go into the deliberation. So in some ways, the only place you could put this person is at the end because otherwise it might get lost. It's fascinating, though, to think about the difference between what happens on television about law and order type of cases and what happens in the reality of the day. It's fascinating to think about. I gotta talk, too, about the fascination of what it's like for the people in the courtroom who are at counsel table reacting to what the judge is doing, namely, the fact that a juror was also struck. I mean, talk about somebody who both sides are trying to cater to. Well, one is no longer in the picture. My guest today is Gene Rossi, who is a former federal prosecutor and also now a white-collar defense attorney. Gene, it's so good to have you. I have been dying to have this conversation with you because you have defended so many trials. First of all, the idea of a juror, for any reason, being struck and dismissed almost at the end of the prosecution's case in chief, that's not normal, not common.

Thanks for having me, number one. But here's my view about dismissal of jurors. It scares the living heck out of a prosecutor because you go all these weeks and days and hours, and then you're at the precipice where the whole case could go down the tube because of a mistrial. And if I were the AUSAs, the federal prosecutors here, I would just take a handkerchief and wipe my brow because it would be covered with sweat. They dodged a bullet. And the reason I say that is the judge here, Laura, had very broad discretion to get rid of this juror for one thing. You can't live in New Jersey if you wanna be on a jury in a Southern district in New York. That is black and white, clear as the day. That's a no brainer.

So at the time that he was taking that qualification, that voir dire questionnaire, I think the thought was that he at one point did live in the Bronx. But the idea that he had made some comment to someone in the courthouse, whether it was an employee or someone else, that he had moved to New Jersey with a fiancee and his daughter, that is what actually sparked this whole thing. It wasn't like something he was nefariously doing online. It was discovered, it seemed, it was something like that, but that was enough, to your point, for the judge to say, hold on, I've got some discretion here. But the judge went on to talk about how, Gene, it seemed like the clarity he sought for this to be and have a benign explanation, the judge seemed to think that there was something in his statements that suggested that he just really wanted to be on this jury, which I think prompted a lot of this.

Right. And Laura, you've had jury trials. You've talked to colleagues who've had jury trials, of course. I've had jury trials. The type of juror that really scares me is the one who will, you know, tailor their answers to desperately get on the jury. I don't want a juror like that because they usually have an agenda.

'I think you and I have talked about the so-called stealth juror who is saying what they need to say to sort of, to get in there, and they have their reasons, and those reasons may or may not be beneficial to the side you're on. But the defense here was fighting this. The defense was saying, hold on a second. We told you, Your Honor, at the very beginning of jury selection that we had our concerns about the racial composition of the people the prosecution wanted to strike. They call that that Batson challenge, right? And now you're striking another Black male. They have said in open court, there's only two Black men. He's been replaced by an alternate who is a white man who's older than him and from a different part of the area. Talk to me a little bit about why a struck juror might be so problematic for the defense here.

I can answer that. I was thinking about that before I came on. There are two Supreme Court cases that say during jury selection, you cannot strike a person because of color of their skin or their gender. You have to have an independent basis. For example, if a juror is Black and they hate cops, that gives you an independent basis if the case involves possible police aggressiveness or something like that. But you can't just strike a juror because they're Black. There's a famous Mississippi case where they had I think five retrials, and each retrial the prosecutor striking Black people.

Oh yeah, the one I think the accused had committed some sort of a crime in a furniture store. I remember this case very well.

Oh yeah. Oh yeah, but fast forward to where we are now. The Batson and the other case, they don't apply here. What applies is this. Does the court have discretion to get rid of a juror because that juror has made a false statement that has been uncovered, and it's a significant statement? Here, the significant statement that exists, the fact, is that he doesn't live in the southern district of New York. Has nothing to do with race or gender. He isn't qualified to be on a jury. On that realm or in that arena, the judge has a broad swath of discretion. It will be affirmed on appeal if there is a conviction.

'You know, interestingly enough, this judge, he wanted to make a record nonetheless. He is always very cognizant, as frankly, any prudent jurist, that's a fancy way of saying any judge, right, would say, I gotta make my record, because they know full well two things. Number one, if there is a conviction, there will always be an appeal. And the record at the trial court level will be scrutinized completely and totally. But what is so striking about this is the timing of it, because again, I think most people think, Gene, if a juror is struck in a high-profile case, or any case, it's because they have the maniacal machinations of the palace intrigue come into effect. And they say to themselves, they must be communicating with somebody outside. No, no, this came down to a qualification. But if you're Diddy, and you are a white-collar defense attorney; you've had many clients. If you are a defense attorney trying to explain to your client what impact this would have or what the other jurors might actually now know when they see that empty seat, what do you tell them?

I say, keep your focus on the ball, focus on this case. We lost the juror that appears to be in our camp, but we can't give up the ship. We can't gave up this cause. We have an alternate, and we have to move on. We have to move on, and, Mr. Combs, remember this, you need unanimity. So if we can persuade just one of the 12 jurors or two of the twelve jurors to hold out, you will be able to fight for another day. That's what I would tell him. Don't be distracted by this one loss. We still have a case. And when you get to the facts in our discussion, I'm starting to feel a little better about the defense's case, by the way. I'm not going through an epiphany, but I'm feeling better about the defense's case.

I want to get there in just a moment, but just to flush that one more point, jurors don't know if they're alternates at this point, right?

Exactly.

They are totally blind to this point. They are completely and utterly in the dark, and that's by design. Also, those alternate jurors, they are going to, once deliberation starts, and they are made aware they're alternates, they're still going to be under that same judicial order not to talk to anyone because they might be brought in for whatever reason. We should also just clarify that one of the things the defense said was that this person had a background that was far more similar to the background of Sean "Diddy" Combs than, say, the juror that as an alternate he'd be replaced with. Just describe to me, though, it'd be a fool's errand to assume that a juror's background is going to be the reason they vote in your favor or rule in your favor as a verdict, right? That is wishful thinking that at times could prove you to be a fool.

I'm going to tell you this right now. You can never predict how a jury is going to feel about your case. There are exceptions. But I would not assume that this dismissed juror was going to vote for Combs or against the government. I wouldn't assume that. What I heard about this juror that was dismissed is that he was taking copious notes. So my view is this, if you're inclined to rule or lean towards Combs, why would you be taking copious notes, if you're already inclined to rule for him? If you're taking copius notes, I'm telling you this right now, as a prosecutor, I want that guy because there was a lot of evidence, text messages, exhibits, charts, that you want somebody that's taken a lot of notes so they remember the evidence that you presented. So I go back to what you just said. You can't predict all the time. There are exceptions, but you can't predict what a juror is going to feel. I can give you many examples where I thought I had a juror in my pocket, and it was not in my pocket.

Let's talk about what your thoughts are in terms of how this prosecution team has tried to meet their burden. Do you think that the jigsaw puzzle is complete enough?

'I have to tell you right now, I have changed my view a little bit, but, in the last three weeks, Laura, I'm hearing a lot of salaciousness, a lot of sex, a lot freak-offs, other phrase I can't, hotel nights, I guess it is. I see a lot this, and I'm saying, okay, Combs has got a weird lifestyle. He abuses his women. He engages in things that other people would find repulsive. I'm beginning to feel that the jury's saying, okay, this guy's a scumbag. He's got weird, weird sexual desires, but does that rise to RICO? That's the key. And you've been saying this for like three weeks. Does it rise to RICO, or is this just personal relationships that are perverted, strange?

Violent and abusive.

Or is this a criminal enterprise? Now, I will say this, the government is now realizing with the witnesses they had the last couple of days, they have to show the money, okay? Jerry Maguire, show me the money. So they now have put on evidence summary charts that is showing that Combs is using funds from his businesses to fund his sexual perversions. You have now the enterprise, and he's using employees to set up hotels and all that, but it still gets to the predicate acts. You have to show a pattern of racketeering activity, not just one incident.

And those can be things like arson or kidnapping or the like, which is why they've got the Kid Cudi in the car, and then they've the Capricorn Clark saying that she was forced to attend or go with him. They're trying to touch on those things, but I think you make such a great point, which I'm not surprised by in our conversations, of course, Gene, that if you are asking the question of, is it RICO at this stage? If you're a juror, if you're in the court of public opinion, that is problematic for a prosecutor who needs to spoon feed the elements and the corresponding evidence and exhibits for each element.

What I see in this case is what happened in the Donald Trump case, the election interference, the hush money case. The closing arguments on both sides are going to decide this case. And I gather that Maurene Comey, who's the lead AUSA — Jim Comey's daughter, by the way — I gather she's going to do the closing. That prosecutor, whoever does it, you're right, they have to spoon feed because RICO and the RICO instructions are very convoluted. And you got to make it simple, stupid to get that jury to find guilty. The only counts that I think he's got some exposure, Laura, is I call it the Mann Act, where I call up a prostitute in LA, and I say, hey, come to Virginia, I'm going to meet at a hotel, and we'll have sex. That's the Mann Act, okay. It doesn't involve fraud, coercion or force.

Transportation for prostitution purposes.

'I think he's most vulnerable on those two counts. I think they're two of the five. But the RICO, I think the defense has a shot. And I gotta compliment the defense attorney. The defense attorney who did the cross-examination, Laura, help me, the one who said she was put over the legdge.

Oh, Bana, she was somebody who was a friend of Cassie who was dangled.

That witness really, really hurt the government because the cross examiner, she was magnificent. She had the receipt that showed he couldn't be in two places at the same time.

Well, Gene, she had the literal receipts. She showed receipts from the Trump International Hotel breakfasts and whatnot. And she posed that rhetorical question that was so surgically incisive when she said, you agree with me that a person can't be in two place at the same time and then tried to deconstruct the credibility by describing the civil lawsuits and what she intimated was a conjuring or a making up of the dates and corresponding injuries. I thought that the timing of that witness, particularly after you'd had Cassie Ventura and Mia and other testimony, it goes to show you the thoughts, Gene, of the chronology of a story that, you know, you have to really map out who might be problematic that could inadvertently undercut some of your stronger witnesses. Let me ask you this, we're talking on Tuesday evening, and the prosecution, they could wrap up as early as tomorrow. The defense has said that they are thinking maybe between two and I believe five different trial days that they will present their case. The million dollar question though: Will Diddy take the stand? Because I've been wondering about this, Gene, and I'll tell you why I've been thinking so hard about it. Because we're in a different era of time when, you know, maybe 20, 30 years ago, the only way to get a defendant's voice, figuratively, literally, into the courtroom was either through a video with a police officer, right, where they have some confession or a police interrogation, or some letter or some hearsay exception coming in. Now you've got text messages that come in. You've got audio messages that are also played. They hear his voice, they hear his explanations and responses to the witnesses that in some ways are defending himself. Will he take the stand?

No, absolutely not.

Think about it, Gene.

No, and I'll tell you why. There are too many text messages, too many videos, too many documents that you could just show him and just confront him, and his response to those documents could be very, very damaging to the case. That's number one. Number two, I am worried that his arrogance may come out during his testimony, and jurors don't like arrogant defendants. And number three, if he shows any flashes of anger during his testimony, you know, in the movie A Few Good Men with Tom Cruise, Jack Nicholson, you know you don't want that moment. I don't think he'll take the stand. But what I would say to the defense, of course they may not listen to me, is don't over try your case. Don't go five days when you can go two. Don't go three when you could go one. Don't call eight witnesses when you only need three. Because jurors don't like defense attorneys that put on too much evidence that distracts from their argument.

Oh, it goes back to that Shakespearean, methinks the lady doth protest too much. Methinks the defense is defending too much and maybe makes some eyebrows raise. Well, this has been fascinating to hear your take and get into the mind of a defense attorney. No wonder you're so good. You were a former prosecutor, as well, Gene.

I was.

Well, we will see how all of this goes down. We don't have that much longer to go because you and I both know anyone who's ever tried to teach a class or sat in a classroom, taught a lecture or sat for that lecture, been at a CLE or any business meeting, knows the worst spot to be in, if you want the attention of your audience, is just before lunch. Well, my friend, we're up against the ultimate lunch, the 4th of July. So they want this wrapped up and the jury to have considered before then, right?

Yes, indeed. If I were the prosecutor, I would want this verdict returned by the last week in June. Absolutely, absolutely. They're gonna deliberate, Laura, I predict the jury's gonna deliberate probably three full days. You'll have a verdict the fourth day.

Hmm.

There's too many pieces of evidence, and they want to show that they're not rushing it. But I think if the defense does a very stellar closing, they have a chance at a hung jury on the RICO count, count one, they do.

We'll see if you're right about the predictions. Gene Rossi, what a pleasure. Thank you.

It's always a pleasure.

This episode was produced by Emily Williams, Graelyn Brashear, Alexandra Saddler, and Rachid Haoues. Our technical director is Dan Dzula, and the executive producer of CNN Audio is Steve Lickteig. With support from Andrea Lewis, Mike Figliola, Hank Butler, Robert Mathers, Alex Manasseri, and Lisa Namerow. I'm Laura Coates, and I'm here for it.