PROSECUTING PUFFY: Is Rap Music On Trial Along With Sean "puffy" Combs?

When the trial of Sean "Puffy" Combs began last Monday in Manhattan Supreme Court, Combs' attorney Benjamin Brafman argued in his opening statement that the case "is not about rap music," it is about "a bum rap." But apparently prosecutor Matthew Bogdanos, who has charged Combs with both illegal gun possession and attempted bribery of a witness, feels differently.

Brafman is betting that he can convince the jury that the case is not about rap music — and, more specifically, that Combs' status as a celebrity in a community whose members often rap about violence is irrelevant. Bogdanos, in contrast, is betting that he can convince the jury that Combs' status as a rap celebrity is exactly what the case is about — and, more specifically, that because Combs is a rap star, he represents a violent culture and believes he is above the law.

For my part, I'm betting on Brafman. The strategies the prosecution has already used and is likely to use later, in the Combs trial, strongly suggest that Combs is being viewed and treated differently, because he is a rap celebrity. But in fact, Combs' status is only a sidelight to the case — and the jury is likely to view it as such, while resenting the prosecution's attempt to turn a prosecution of an individual into a referendum on rap.

Prosecutor Bogdanos, in his opening statement, emphasized the testimony of a witness who says that Combs offered him money and a ring, to say the gun belonged to the witness, not Combs. That witness is Wardell Fenderson — the chauffeur who drove Combs and his girlfriend, actress Jennifer Lopez, away from Club New York after the incidents at issue in the case took place. According to Bogdanos, Fenderson will testify that Combs told him, "I can't go to jail. I'm Puff Daddy."

It's not very persuasive to say to someone you'd like to take the fall for you: "I can't go to jail, I'm Puff Daddy; but you can, you're a nobody." What would the expected answer be? "Sure, Puff Daddy. Would you like me to give up fifteen years of my nobody life for you, or would ten be enough?" Odds are that Combs, a smart businessman, would be smart enough to say something persuasive, if he were trying to persuade someone.

Still, Bogdanos apparently believes that Combs did make the "I'm Puff Daddy" comment, and also finds the statement significant enough to stress it in his opening. Why? Because Bogdanos is attempting to paint a picture of a rap star who believes that a rap persona and nickname put him above the law — indeed, a rap star whose alleged attempt at bribery was virtually a rap: "My name's Puff Daddy, and I can't go to jail…"

No wonder Brafman used his opening statement on Combs' behalf in part as a vehicle to humanize Combs and bring the trial down to earth, telling the jury: "You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, you can call him just plain Puff. You cannot call him guilty." The prosecution urges the jury to see Combs only as Puff Daddy; the defense depends on their recognition that he is also Sean.

In his opening, defense attorney Brafman also repeatedly called Bogdanos a "star-struck" prosecutor. And he suggested to the jury that Combs' celebrity status persuaded Bogdanos to indict Combs, rather than Fenderson, for gun possession — even though Fenderson initially claimed the gun was his, and Combs has always denied possession.

Had the government gone after Fenderson instead of Combs, Brafman argued to the jury, gesturing to the spectator-packed courtroom, there "would not be THIS" — meaning this spectacle, this event, this opportunity for glorification of the government and the rule of law.

Star-struckness, though, appears to be only half the story: Rather than being targeted because he is a celebrity, it seems that Combs may be a target because he is a rap celebrity, in particular.

By emphasizing Combs' alleged remark "I'm Puff Daddy; I can't go to jail," Bogdanos is inviting the jury to punish not one person, but an entire culture and attitude: the attitude that law violation is a source of "cool," and that once one has enough cool to be a celebrity, law violations will no longer be punished.

Would the government be so avid if Britney Spears or a Backstreet Boy were on trial — and so willing to believe the chauffeur over the celebrity in a swearing contest? The thinking seems to be that if the government wins, the spectacle created will be valuable not just because a celebrity will have been brought down, but because the fallen celebrity will be a rapper. The rule of law will have won against the rule of violence — or at least, that will be the message sent. But a trial should be about individual justice, not about sending a message.

In this trial, rap matters. Consider, for example, the tactics prosecutors considered using against another rapper, Jamal "Shyne" Barrow, a Combs protégé who is being tried along with Combs. Although Combs and Barrow are charged with different crimes — and the allegations against Barrow will likely be much more difficult for his defense to counter — Barrow faces the same prosecutor as Combs, and the tactics that prosecutor has used against Barrow shed light onto his motivation in prosecuting Combs, as well.

Barrow is charged with attempted murder based on the same nightclub shooting that gave rise to the charges against Combs. (Prosecutors said Combs fired one shot, into the ceiling; they say Barrow fired into the crowd at Club New York, wounding club goers). Last December, prosecutor Bogdanos reportedly announced his intent to offer Barrow's lyrics as evidence at trial.

That move would raise obvious First Amendment issues. Giving a preview of how the defense might respond, Barrow's lawyer, Murray Richman, shot back: "Dostoyevsky wrote about murder — does that implicate him as a murderer?"

It's not a coincidence, of course, that Richman tried to hearken back to classic literature rather than, say, evoking another rap. ("Eminem wrote about beating his wife — does that implicate him as a wife-beater?" Not exactly rhetorically effective.)

More first person and less high-falutin' than Dostoyevsky, rap is more easily read as a threat than as art. But art it is, and so it is problematic to suggest that at trial, Barrow's motivation can be shown, or his credibility or good character impeached, by his rap lyrics describing violence.

For these rap lyrics to be used to impeach Barrow's good character would be particularly troubling — as much as the suggestion that Salman Rushdie is evidently Satanic because he wrote "The Satanic Verses," or that Bret Easton Ellis is evidently psycho because he wrote "American Psycho."

More troubling, too, is the assumption that it is inevitable for Barrow's songwriting to leak over into his private life — so much so that it can be used as evidence to convict him. Whether or not Combs' music (or that of the rap acts he has promoted) will be similarly used against him, it seems likely that this assumption that rappers must live as they write has, at a minimum, shaped the way the government has treated Combs — in everything from plea negotiations (if they occurred) to the government's decision to insist on consolidating the trials of Barrow and Combs.

Combs is likely to suffer substantial prejudice from the consolidation, since his two co-defendants probably won't testify at all in the joint trial, in order to preserve their Fifth Amendment rights against self-incrimination. Strikingly, both Barrow — who would have a motive to pin the shooting on Combs to try to lessen his own apparent culpability — and the third co-defendant, Anthony Jones, Combs' bodyguard, swore out affidavits stating that Combs carried no gun. (These affidavits were submitted in support of Combs' unsuccessful motion for his case to be tried separately.) But now that the trial of all three defendants is combined, jurors will never hear these two witnesses say that Combs had no gun that night.

Given this unfairness, what was the justification for lumping Combs in with Barrow? Was it just that they are both rappers — and therefore, to the government, both inherently, and equally, violent?

Even in the first week of Combs' trial, the prosecution's ability to prove its charges against him beyond a reasonable doubt seems more and more dicey by the day — suggesting the prosecution should have spent more of its time building its factual case, and less in styling Combs as an arrogant rap star.

As Brafman has pointed out, Fenderson has a $3 million civil suit pending against Combs, based on Fenderson's version of what happened in the car speeding away from Club New York that night. Thus, the bribery charge seems to be a case of Fenderson's word against Combs' — with Fenderson's credibility potentially severely damaged by his big-ticket lawsuit.

With respect to the gun possession charge, though some witnesses will swear Combs had a gun that night, others will swear he didn't. One clubgoing witness' contention last week at trial that she saw Combs with a gun crumbled into hesitation and qualification after cross-examination by Brafman. And earlier, Jennifer Lopez reportedly said before the grand jury, without the protection of an immunity grant, that she never saw Combs with a gun that night. She will presumably testify at trial to that effect. (She is listed as a witness by both prosecution and defense).

In the face of these contradictions, proof beyond a reasonable doubt seems elusive, to say the least (though the victims' civil cases, to which a laxer proof standard applies, may be a different story). The standard would have been even more difficult to meet had the prosecution played fair and allowed Combs a separate trial during which Jones and Barrow could have testified in Combs' defense, corroborating Lopez and other witnesses who will likely say he had no gun on the night in question.

With these problems in the prosecution's case, Brafman's portrait of a hubristic prosecutor seems, so far, to be more convincing than Bogdanos' portrait of a hubristic rapper. In the coming days, that may change. But Bogdanos may have erred in bringing rap, and hubris, into the case in the first place.