Lawyers working on Sean ‘Diddy’ Combs’ defence against charges of sex trafficking and racketeering have asked the courts to throw out evidence gathered by the prosecution that they say breaches attorney-client privilege. That evidence is mainly Diddy’s “handwritten, privileged notes, a roadmap to his defence” that made its way to the prosecution team in an example of “shocking and outrageous government conduct”.
Combs’ attorneys also want prosecutors who have seen that evidence and are “tainted by access to the privileged materials” to be removed from the case and for a court order to stop the government “monitoring Mr Combs’ communications with the defence team”.
On top of that, the lawyers want the court to order a formal discovery process and subsequent hearing to establish the extent to which the prosecution’s conduct in the investigation may have breached Combs’ constitutional rights, including by accessing and using privileged materials.
The outcome of that hearing, says the defence team, might be that the court orders measures to “minimise prejudice going forward” or, depending on what is discovered, even throws the whole case against Diddy out entirely.
At the heart of the dispute are handwritten notes made by Combs while in prison which were photographed during a routine sweep of the Metropolitan Detention Center in Brooklyn, where the musician has been held ever since he was charged in September.
Those notes were about Combs’ defence which, his lawyers argue, mean they are covered by the principle of attorney-client privilege and therefore should not have been seen by prosecutors.
The notes came up during Combs’ most recent attempt to secure bail, when prosecutors used them to back up their argument that there was a high risk of witness tampering if Combs is released while awaiting trial.
Prosecutors argue that the notes are not covered by attorney-client privilege, adding that they were checked by a ‘filter team’ - which goes through evidence for that sort of reason - before they were seen by anyone working on the prosecution.
As a result of the dispute over whether or not the notes are privileged, the judge who assessed - and ultimately rejected - Combs’ bid for bail did not take their contents into account when he was making his decision.
However, Combs’ team are now questioning whether the prison sweep during which the notes were photographed was truly just a routine sweep or whether it was actually instigated at the request of the prosecution who, they allege, have been working in collusion with the Bureau Of Prisons to monitor Combs’ communications, including with his attorneys.
Officially the prison sweep was looking for ‘contraband’ items that prisoners are not allowed to have in their possession while in jail. But if that was the case, asks the defence team, why did the personnel who carried out the sweep photograph and then leave in place notes taken by Combs?
If the notes were somehow contraband, write the lawyers, they would have been seized. But instead, the notes were photographed, “leading to the inescapable conclusion that this was an intentional, targeted and illegal search to discover any information that could give the prosecutors a leg up against Mr Combs”.
The only way “to safeguard Mr Combs’ constitutional rights and ability to defend himself against these very serious charges”, concludes the written argument submitted by the defence, is for the court to intervene. This is “imperative”, they add, “because the government has proven time and again that it will intentionally continue to violate” Combs’ rights, if it is “given the chance”.
Combs continues to deny all the allegations that have been made against him in both the criminal case and the countless civil lawsuits that accuse the musician of sexual assault and other misconduct.