Steve Palmer [00:00:00]:

Here we are, Lawyer talk off the record, on the air, we've got sort of a law school edition. Plus, what's the appeal edition? And the theme of the day, ain't no party like a Diddy party.

Troy Hendrickson [00:00:11]:

From the great words LeBron James.

Steve Palmer [00:00:13]:

The estimable words of LeBron James, ain't no part. Well, it turns out he was right. Yes. Because there is no party like a Diddy party. It just turns out that maybe it was. Also, there were some crimes being committed, but not as bad as the government alleged, has it? Yes, as the jury. At least that's what the jury says. You were asking me some questions.

Troy Hendrickson [00:00:29]:

Yeah.

Steve Palmer [00:00:29]:

About some motions, meaning some legal arguments that the defense was making after the con, after Diddy was convicted.

Troy Hendrickson [00:00:37]:

Yeah, we always talk about conviction, and then next step, we talk about the appellate process. Then there's this, like, short window between conviction and sentencing where lawyers will file these, like the pre sentencing post trial motions. And there were some filed in ditties. And I mainly just want to talk about, like, when are these actually even, like, legitimate motions to file? Like, they just seem like throwaway motions to me.

Steve Palmer [00:01:01]:

All right, well, let's talk. Let's first define some terms. For everybody else, a motion is really a written legal argument making a request for some legal remedy. So when you hear motion, it's not like lawyers running up and they're waving their hands, but what they're doing is asking the court to grant some legal relief. And you're also talking about post conviction. So Diddy's been convicted. He has not yet been sentenced. There's this gap in time, and the lawyers have filed post conviction motions making some legal arguments.

Steve Palmer [00:01:33]:

And I think what they're arguing here. Well, you go ahead.

Troy Hendrickson [00:01:35]:

What they argued in was they were asking for a new trial. And the arguments in there was that these trials were. I mean, the charges were so outrageous that, like, the jury had to convict them on, like, the minor stuff because they were just like blood blasted with this terrible stuff. So they had no choice.

Steve Palmer [00:01:51]:

All right.

Troy Hendrickson [00:01:51]:

That's what their argument was.

Steve Palmer [00:01:53]:

So first motion for new trial. So now what's going on is the attorneys for Diddy are saying, we want a new trial for legal reasons. We haven't even been sentenced yet. There's not even been an appeal yet. But we're saying trial court, give us a new trial. Because there are some legal mistakes here. Let's stop there and give that a little bit of lip service. Say in Ohio, we've just been convicted and we file a motion for a new Trial.

Steve Palmer [00:02:17]:

There's a provision for that in the Ohio criminal Rules, and in. In most jurisdictions, federal court included, there's a provision for a motion for a new trial. Typically, you use the term throw. Did you say throwaway motions? So typically, throwaway motions are, we're doing it because it looks good, or maybe we're making an argument or whatever we're doing, but we don't expect to win. But there's some strategic reasons why, one, you might have to do it, and two, you might want to do it. Let's talk about the have to. Every now and then, you might run into an argument that you have to make at the trial court level. I think this is probably a rare bird.

Steve Palmer [00:02:49]:

Typically, what I would be looking for is if we identified some sort of jury misconduct. And I don't mean a jury's committed a crime. Maybe. Maybe a juror's committed a crime. But let's just say that it just so happens there's a guilty verdict. We talked to the jurors afterwards, and a juror said, by the way, juror number two is. He told us throughout the proceeding that he was watching the news and he hated Diddy and he was going to convict him no matter what. That's an obviously extreme example.

Steve Palmer [00:03:17]:

That is something that we would want to raise and maybe even have to raise in a motion for new trial, because the trial court's the entity that could fix that. They could call that juror back in. It's all like, the iron is still hot. Turn those machines back on, come back here, and let's talk to that juror and have a hearing on this. That happens every now and then. There's a problem with that, and I'll. I'll just sort of scratch the surface of it. It's called the Ali under rule, which basically says the sanctity of the jury cannot be disturbed.

Steve Palmer [00:03:46]:

The judge, the court can't. We can't dig into really why the jury decided something. There are exceptions, and misconduct would be one of them. That would be a good motion for a new trial. Maybe you found out immediately after trial that a witness lied again, maybe a motion for new trial. Every now and then you can say judge, or you can also argue judge. You made some decisions. We objected and we said no.

Steve Palmer [00:04:13]:

This witness, on behalf of the government said, did. He did xyz. You shouldn't have let that witness testify, but you did. And here's law. We have now determined it's clear and convincing that you're wrong. We need you to revisit this and we should get a new trial. Now, the pro. The problem with that is judge probably is not going to say, oh, you know what, I changed my mind, you're right.

Steve Palmer [00:04:35]:

And the other problem with that is.

Troy Hendrickson [00:04:37]:

Just sparks the light bulb as well. This piece of paper just magically like showed me the light.

Steve Palmer [00:04:42]:

But maybe, maybe, but you don't have to file that in order to later challenge it on appeal. In other words, trial, conviction, sentencing appeal. Ordinarily, anything you want to challenge over here on the appellate side, you have to at least give the trial court, the judge at trial, a chance to fix it. Meaning I object. We don't think that this person should testify or whatever the argument is. You can raise that on appeal and if you want, you can try again with a motion for new trial. Now let's say that you raised or you. You objected, but you know the arguments.

Steve Palmer [00:05:18]:

Because of the ebb and flow and the heat of the battle at trial, you didn't argue it as strenuously as you wanted to. You can maybe re. Argue it or add more into the record on the motion for new trial. That way you're cleaner when you get to appeal. Perhaps, but it wouldn't be a prerequisite, meaning you don't have to do it in order to appeal.

Troy Hendrickson [00:05:39]:

You can just basically add some more language in there that like. Or some case law just showing that you made a more solid record, I guess.

Steve Palmer [00:05:46]:

Yeah, you could, you could clean up your record and you could say, look, court of appeals, not only do we argue it here, but we've, we've given this judge a second chance based on these additional arguments. But you got to be careful because they have to link up. You can't just add new arguments.

Troy Hendrickson [00:06:00]:

Yeah.

Steve Palmer [00:06:01]:

Unless the issue is new, that's not going to necessarily fix it. There has to be what we call contemporaneous, meaning at the time of the mistake at trial, you have to be on your feet screaming, objection. There's a movie, it's with John Travolta. I think Robert Duvall is in it. And it's about. I forget, Civil action, I think it's called. And in this movie, Travolta is a personal injury lawyer PI Guy. And they're taking on the contaminated water in some town.

Steve Palmer [00:06:30]:

I think it was Woburn, Massachusetts, actually. It's a real case. They're taking on the contaminated water and the defense insurance company, or whoever. The company's. Whoever's in charge of the company's defense hired Robert Duvall. I forget the guy's name. In real Life. But the actor was Robert Duvall.

Steve Palmer [00:06:47]:

He was a law professor that taught evidence. And he made this joke that if you fall asleep, the first thing you say when you wake up during trial is, objection. So you object to everything. And I think the movie sort of made a little bit more out of this than what is real. But, you know, for demonstrative purposes or for entertainment value, Duvall objected to everything in that movie, and it sort of threw. It flustered Travolta's character, and it flustered the process, but he always objected. But, you know, there's some semblance of reality to that. Because you want to object.

Steve Palmer [00:07:17]:

You've been in trials with me, and, you know, you've even nudged me. Shouldn't you be objecting? You're learning, which is great, and you know it. It's better to object than not. And you would say, as a lawyer, I don't want to object. You know, I don't want to disturb. But it's really easy. And you've read transcripts or lawyers have done this. Yeah, it's easy in the heat of the battle to sort of say, shiver up into your turtle up.

Troy Hendrickson [00:07:38]:

Yeah.

Steve Palmer [00:07:38]:

And say, well, I don't want to upset the judge, and I don't want BS. Object. Get on your feet and object and do it with authority and make your record. Objection. Hearsay confrontation clause. Objection. Violates the rules against character evidence. Objection.

Steve Palmer [00:07:53]:

Objection. Objection. And a motion for new trial later isn't necessarily going to fix it if you didn't object. It's probably better than nothing, but not going to necessarily fix it. So now back to Diddy. What's. What's this all about? He's making an argument. Or.

Steve Palmer [00:08:10]:

Go ahead and summarize the argument.

Troy Hendrickson [00:08:11]:

Again, the argument's just that these charges were so outrageous that this jury had no choice but to convict him on these lesser ones. It reminds me of, like, the whole throw a bunch of stuff at the wall argument. They just want to have something that sticks.

Steve Palmer [00:08:22]:

Right.

Troy Hendrickson [00:08:22]:

That was basically their argument. I'm not saying it's a good argument. I imagine it was kind of the best one they could make. That's what I think.

Steve Palmer [00:08:29]:

Well, I like the creativity here, because what they're really arguing is this. All right, Judge. The government has indicted my client Diddy, on this plethora of charges. Some are very, very serious. That carried huge sentences, but others are little mini ones or that carry maybe five years. I think he's looking at, what, up to five years or something?

Troy Hendrickson [00:08:49]:

Something like that? I believe so.

Steve Palmer [00:08:50]:

So let's just say the most serious ones would have been life or 30 years or something. The least serious or five years. And they're what the. What the defense team is. Arg. Judge, what the government did here is contaminated the fairness of this trial by accusing Diddy of these horrible things. And this resulted in what we call sort of commonly in the slang, a compromise verdict, meaning the jury said, wow, we're not going to convict him of these serious things. But to the extent there's any question about anything, we'll do the little ones.

Steve Palmer [00:09:27]:

Yeah, like no big deal. Now, there's a couple of problems that are. And I like the argument, and it would be premised, by the way, on something called due process or fundamental fairness or this idea that you can't contaminate a trial intentionally like this. It would violate my client's right to due process and a fair trial. All sort of premised in the Fifth Amendment and federal. In the Federal Constitution and the 14th Amendment, as that applies to the states. But anyway, it's just a fundamental fairness argument. This is bs.

Steve Palmer [00:09:54]:

They only did this to gain an unfair advantage at trial. They knew they couldn't prove these cases and therefore they did it in order, as a. In order to increase the likelihood of getting a conviction on the little ones. There's a couple problems with that. I like the argument, by the way, and it's, you know, it's really the.

Troy Hendrickson [00:10:13]:

Best hand they had.

Steve Palmer [00:10:14]:

It's a good argument. The problem, though, is this. We have in our society something called a grand jury or a probable cause determination. And typically what happens when somebody is indicted or charged with crimes, we have a grand jury, and the grand jury's role is to meet in secret with the prosecutor. And they're supposed to be a bulwark against this kind of stuff. In other words, they have to decide if there's a threshold amount of evidence, just a beginning or starting point amount of evidence that would be, that is there, that would enable the prosecutor then to take the next step and actually charge somebody and take him to trial. And in theory, if there's not enough evidence, the grand jury could vote not to indict or not to charge somebody. We'd call that a no, Bill.

Steve Palmer [00:10:59]:

In practice, the old saying is the prosecutor could indict a hole in the wall. The prosecutor could indict a ham sandwich. I mean, it's not hard. And the defense doesn't even have a right to know there's a grand jury convened, let alone testify at a grand jury. In other words, if I know that my client's under indictment or under investigation. And I call up prosecutor and I say, ring a ling a Ling. Hey, Mr. Prosecutor, I want my client to testify in front of the grand jury.

Steve Palmer [00:11:23]:

The prosecutor could say, what are you talking about? Well, I know there's a grand jury not permitted to disclose any of that. Well, my client wants to testify. Yeah. No, no. Now other times there was a jurisdiction here in central Ohio that always invited the defendant to testify, a grand jury. And you know, on the one hand you could say, well that's sort of noble of them. On the other hand, how many poor defendants without lawyers went in and testified in front of the grand jury and made all sorts of incriminating statements under oath? It can go really bad.

Troy Hendrickson [00:11:54]:

Yeah.

Steve Palmer [00:11:55]:

Every now and then I'd have a client testify in grand jury every now and then, maybe once or twice, maybe in my 30 years. And, and I think both were self defense homicide cases where a grand jury, the prosecutors using the grand jury maybe for, I don't call it a political purpose. But I'll say it this way, if the grand jury didn't indict somebody who committed a murder based on self defense, the prosecutor could say, well look, I had presented to the grand jury, they decided they didn't want to indict it, so so be it.

Troy Hendrickson [00:12:27]:

I feel like grand juries could do more damage than good for a defendant. Absolutely. It'd just be nice for the defense lawyer to be there. That's what really happened.

Steve Palmer [00:12:35]:

I would love to hear all the evidence. But back to the point, the grand jury would have approved these charges. And, and you can. Look, I'm not here to stand on a soapbox and say the grand jury is a perfect process that always protects a defendant from crappy indictments because it doesn't. But that's what the law is going to say it does. And here we enter this realm of the mystique of the law. So for instance, in a trial, we just experienced this when we decided to do a jury wave trial. We get a jury instruction that says you jurors are not permitted to consider the fact that this guy was accused of doing this conduct before to determine whether he did it this time.

Steve Palmer [00:13:13]:

But you can look at that fact for other reasons, like nonsense. The jury's going to hear it. Like you can't instruct your way out of what human nature really is. You can't do it. At least most of the time you can't. So some of this is we call these. But yet we do it and we say the Law is okay, because we gave that instruction. And they're going to say here.

Steve Palmer [00:13:35]:

The judge, I think, will say here, well, look, irrespective of what you may think, defense lawyers, about the sanctity of the grand jury process and whether it was actually a good bulwark against a crappy indictment, it's good enough. There was a probable cause determination, therefore we can wash our hands of it and say the overshadowing of the serious charges isn't a problem. But I like the argument. It's a great argument. Yeah.

Troy Hendrickson [00:14:05]:

I think the only time we've seen a good post trial motion was. I think it was the. It was a. It was somebody's lawyer not informing them of, we're not gonna get in this whole rant. But the deportation for pleading guilty. And then they, like, wanted to change their plea, like right before the sentencing. Yeah, that was like the one time I've seen a good one. But on these, some of these appeals, I see them and they just seem.

Steve Palmer [00:14:26]:

Well, that wasn't post trial. That was post plea.

Troy Hendrickson [00:14:30]:

Okay, so it's post plea.

Steve Palmer [00:14:33]:

But you could reverse that and say, look, I wouldn't have gone to trial had I known this. My lawyer didn't tell me this. Yeah, well, the cat. The train has left the station, as they say. Or the cows out of the bar, whatever the saying is, you can't put the toothpaste back in the tube. Pick your metaphor. It's not going to work. Or cliche.

Steve Palmer [00:14:50]:

So. But, but here, you know, there's at least a colorable claim because now the defense is going to say in response to the prosecutor, well, look, fair enough, grand jury aside, now we know, because the evidence you brought into this courtroom was so flimsy that there wasn't even probable cause for it. And you guys did it, Mr. Prosecutor, only to gain an unfair advantage. And I guess the other grounding for this request is, I'm talking about would be prosecutorial misconduct. Yeah. And again, those are the types of arguments that are sometimes raised in post conviction motions or post trial conviction motions.

Troy Hendrickson [00:15:33]:

Do you want to know how the motions went?

Steve Palmer [00:15:35]:

Denied.

Troy Hendrickson [00:15:35]:

Yes.

Steve Palmer [00:15:36]:

Merrily.

Troy Hendrickson [00:15:37]:

Yes.

Steve Palmer [00:15:37]:

Quickly.

Troy Hendrickson [00:15:38]:

Yeah.

Steve Palmer [00:15:39]:

So let's talk about. We did talk about some other reasons that people might follow those motions and did. He's a good example of that. Publicity. Yeah. You know, or you want to get your argument out and look, lawyers aren't immune from doing this. If you put something in a legal pleading, in theory, you have protection from it. I can't.

Steve Palmer [00:15:56]:

You don't. You're not permitted. We are not Ethically permitted to file frivolous motions. But say you're trying to inform the public about your legal arguments and you have a colorable way to raise a leg. A lawyer might file that kind of motion. You got to be careful here, though, because you don't want to file. I don't file motions willy nilly just to educate the public on something or grandstand or bang the table. I think that ultimately, nine times out of 10, it's going to backfire.

Steve Palmer [00:16:26]:

You're going to get the, like the judge going to look at you and say, you're wasting my time.

Troy Hendrickson [00:16:29]:

Yeah.

Steve Palmer [00:16:29]:

And then you run the risk of saying, you lawyers, you have badgered me, you've wasted my time. This is frivolous crap. And how's that going to inform the court's decision? I would ask rhetorically, on the sentence. Which brings us to the next topic. Did. He's going to be sentenced. And the other thing that is, the other document that is almost always filed, particularly in federal court, would be a sentencing memoranda. This is a.

Steve Palmer [00:16:54]:

This is like your argument to the judge about what the sentence ought to be. And in federal court, they have guidelines. In state courts, they have guidelines. And maybe sometimes you give a little legal analysis of what the guidelines would dictate. And by guidelines, I mean things the judge should consider before rendering a sentence. And that might be what you would guess, like risk of recidivism or what? Has a guy been in trouble before? Is he going to be in trouble again? What's his history? What's his character? What's the nature of harm to the alleged victims? All sorts of things. But the need for punishment, these are all the things that go into those kind of sentencing memoranda. So the Diddy kit, when's he sentenced?

Troy Hendrickson [00:17:32]:

I have no idea. Right. I'm a terrible, terrible spokesperson for Diddy. I apologize to his team. Yeah, I'll get better at it. Maybe I should have gotten by to the parties. I don't know. Listen, maybe would have been more.

Steve Palmer [00:17:40]:

I'm sure, I'm sure we'll. There'll be some music.

Troy Hendrickson [00:17:43]:

Okay.

Steve Palmer [00:17:44]:

That will document the whole process. But you brought up something else. You brought up jail time credit.

Troy Hendrickson [00:17:49]:

Oh, yes. Yeah. He's been in for, I want to say, at least a year, year and a half. So he's going to get some. He gets credit for all that, right? Isn't that how it normally works?

Steve Palmer [00:17:58]:

Yeah, he'll get credit. By credit, we mean he was in. He was arrested as the case was charged.

Troy Hendrickson [00:18:06]:

Yep.

Steve Palmer [00:18:07]:

Held in jail. Apparently I. I don't know if he's held without bond or held on a bond amount that he couldn't make, which.

Troy Hendrickson [00:18:13]:

No, he was. I think he tried putting up. That was kind of a crazy story at the time. He tried putting up his house and he put up like 40 million.

Steve Palmer [00:18:19]:

They were like, no, they still wouldn't take it.

Troy Hendrickson [00:18:21]:

Yeah.

Steve Palmer [00:18:22]:

So he's held without bond. He's getting credit for the time he served against whatever sentence the judge will impose. And, you know, it's been almost two years.

Troy Hendrickson [00:18:29]:

I think it's been a year, year and a half. But it's. I mean, it's called a year credit.

Steve Palmer [00:18:34]:

Yeah. All right, so he's got 18 months of credit against, say a five year sentence. And then there's other things that can happen, like good time or there's. There's ways to, to get. He won't. He won't serve much more time, I don't think, ultimately speaking. But anyway, didn't teach any of that in law school.

Troy Hendrickson [00:18:51]:

No, no, no Diddy parties at school.

Steve Palmer [00:18:53]:

Yeah, yeah. There's nothing like a ditty party. So look, if you've got a question, you got a topic you want us to cover right here in this segment or any other Lawyer Talk segment, shoot it to us in the comments. Go tolawyer Talk podcast.com and send me a question there. And by the way, if you like it, if you're enjoying this content, you know, give us a. Like, subscribe. Do what you're supposed to in the social. You probably.

Steve Palmer [00:19:11]:

You guys probably know more than I do, but do what you're supposed to do to help us out.

Troy Hendrickson [00:19:14]:

We appreciate it.

Steve Palmer [00:19:14]:

This is Lawyer Talk. Off the record, on the air. They don't teach you that in law school style. Till next time.