Mark Geragos may not like that Diddy's lawyers are subject to a gag order -- and so is he ... but, a prominent prosecutor from L.A. says prosecutors need it to avoid a possible appeal.
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00:00So what do you think?
00:03I mean, Garagos is saying works one way, one way street that, yeah, if the judge wants
00:08to gag, you gag prosecutors, but the defense always has a right to speak.
00:13I think that's a pretty narrow view of the Shepard decision.
00:17The real crux of that case is about preserving the rights of a defendant and his due process
00:23rights.
00:23And the court uses really flowery language, like a solemn process, serenity, calm of
00:31a courtroom.
00:32So, you know, Harvey, leave it to you and Mark to disrupt the serenity in the courtroom via
00:38your podcast.
00:39Have you thought about if you end up in an appellate record?
00:43So shout out to you and your dad, but I think Mark is reading it too narrowly.
00:48I think that the point is about preserving the rights of the defendant.
00:52And we can't assume that Mark's even pro-defense comments don't adversely impact any.
00:59And that's what it's about.
01:00But isn't that the defense's call on whether it benefits or not?
01:04I mean, maybe they misjudge, but they misjudge in court sometimes.
01:07Shouldn't it be the defense's right to say, well, this is going to benefit my client.
01:12And if it backfires, it's on them.
01:14Well, you know, particularly if Mark is even an unofficial member of the team, and that
01:19means he could be subject to ineffective assistance of counsel.
01:22So say Diddy is convicted, it goes up on appeal, and they start naming him and some of his conduct
01:28as being that of ineffective assistance of counsel that essentially violated his due process
01:33rights by trying the case in the media.
01:36You know, this is a high-profile case.
01:38Mark is a nationally renowned defense attorney.
01:42So people are paying attention to what he has to say, and it can cut both ways, let's
01:47be honest.
01:48Yeah, I mean-
01:49The same pack of women are clearly on it.
01:51The fact that they, in real time, put together that letter to the judge, Harvey, they're watching
01:56you.
01:57So you should be careful, too.
01:59Yeah, I think it's not just the judge who will be-
02:02Well, the gag order's not on me, just so you know.
02:04But, you know, hey, they're hanging on your birds, too, and, you know, these are dialed
02:10in prosecutors, and I think that's kind of a message to Mark and the entire defense team.
02:16They're on it, and they're paying attention to what's happening in the courtroom and outside
02:20of the courtroom and protecting the integrity of their case.
02:23So, Kirsten, you're saying that the prosecutors in Diddy's case could be looking at this as that
02:31Diddy, and I'm not going to say that Diddy is doing this, but they're guarding against
02:35the fact that if he loses, they don't want Diddy to have grounds for appeal.
02:41That's correct.
02:42The prosecutor's job is to protect their conviction, to obtain the conviction and then to protect
02:46it and to make sure you are insulating yourself against any reversals on appeal.
02:51That seems very paternal to say the prosecutors are actually protecting the defendant by saying
02:58the defense can't speak-
02:59Well, they're protecting their conviction if they get it.
03:01But that's not a fair trial issue.
03:04I mean, look, Kirsten, the first thing out of the gate in this case was the U.S. attorney
03:12for the Southern District of New York holding a news conference.
03:16I mean, it would have been enough just to release the indictment.
03:19He holds a news conference.
03:21They always hold news conferences when they announce indictments of high-profile lawyers.
03:25Kirsten, you know what I'm saying, that he doesn't have to hold a news conference, but
03:30he doesn't.
03:30He lays out everything.
03:33Yeah, that's interesting because the U.S. attorney's office tends to be quite buttoned up and purposeful.
03:41But just by releasing what will ultimately be public record in of itself isn't creating the circus-like atmosphere that the Supreme Court was talking about in the Shepard case and they're trying to guard against and protect the due process rights of the defendant.
03:59So news conferences in and of themselves aren't the problem.
04:03But it opens the door.
04:06It opens the door.
04:07I mean, I do think there's a difference between the prosecutors fulfilling their obligation because ultimately, remember, the prosecutors aren't representing these victims.
04:16They're representing the public.
04:19So keeping the public informed about proceedings.
04:22Okay.
04:22But wait a minute.
04:24When you're saying keeping them informed, what they're doing is they're laying out the allegations.
04:29And then the issue is, does the defense have a right publicly to counter all of that?
04:34I mean, laying out a charging document ultimately is going to be public record.
04:38So they're not saying anything in a news conference that the public isn't going to get access to eventually anyway.
04:45And, you know, this is a precarious line.
04:47I think it's a close call.
04:49I think the judge was appropriate to bring it to, or the prosecutor's appropriate to bring it to the judge's attention and for the judge to say, hey, particularly before they start this trial in earnest with opening statements and testimony next week, everybody should probably dial it in and be very careful about the language you're using in the public square.