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Is rap music on trial along with Sean 'Puffy' Combs? by Julie Hilden FindLaw Columnist Special to CNN.com

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In this story: Is Sean Combs, or Puff Daddy, on trial? A star-struck prosecution? Rap lyrics on trial? Early proof problems for the government RELATED STORIES, SITES

(FINDLAW) -- When the trial of Sean "Puffy" Combs began on January 29 in Manhattan, Combs' attorney Benjamin Brafman argued in his opening statement that the case "is not about rap music," it is about "a bum rap." Apparently prosecutor Matthew Bogdanos feels differently.

Combs is charged with illegal gun possession and attempted bribery of a witness during and after a shooting incident at Club New York on December 27, 1999.

The prosecution seems to be betting it 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. Not only is this unfair to Combs, it is likely a tactical mistake by the prosecution.

Is Sean Combs, or Puff Daddy, on trial?

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

On the face of it, it is very hard to believe Combs said this. The comment seems to belong in a thought balloon over Combs' head in a cartoon, or to a Puff Daddy sock puppet wielded by a comic on Saturday Night Live. It is difficult to imagine someone with Combs' savvy saying something so simplistic and so conceited to someone he was supposedly imploring to help him.

Still, the prosecution apparently believes the statement rings true, and even decided to stress it in its opening. Why? To paint a picture of a rap star who believes that a rap persona and nickname put him above the law.

A star-struck prosecution?

In his opening, defense attorney Brafman suggested to the jury that the prosecution is "star-struck," and that Combs' celebrity status persuaded them 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, Brafman argued to the jury, gesturing to the spectator-packed courtroom, there "would not be THIS" -- meaning this spectacle, this circus, this opportunity for glorification of the government.

Being star-struck, though, appears to be only half the story. Combs may be a target not only because he is a celebrity, but also because he is a rap celebrity. The thinking may be that if the government wins, the rule of law will have won against the rule of violence -- often celebrated in rap lyrics that glorify shoot-ups such as the one at Club New York.

But a trial should be about individual justice, not about sending a message. Would the government be so avid if Britney Spears or a Backstreet Boy were on trial -- and so willing to believe the story-switching chauffeur over the celebrity who consistently claims innocence in a swearing contest?

Rap lyrics on trial?

In this trial, rap matters. Consider the tactics prosecutors considered using against another rapper, Jamal "Shyne" Barrow, a Combs protégé who is being tried along with Combs. Barrow is charged with attempted murder.

Prosecutors say Combs fired one shot at Club New York, into the ceiling. They say Barrow fired into the crowd, wounding three. Last December, prosecutor Bogdanos reportedly announced his intent to offer Barrow's rap lyrics as evidence at trial.

That would raise serious First Amendment issues, as Barrow's lawyer, Murray Richman, pointed out when he retorted: "Dostoyevsky wrote about murder. Does that implicate him as a murderer?"

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

Troubling, too, is the assumption that it is inevitable for Barrow's songwriting to leach into his private life. Has the same assumption shaped the way the government has treated Combs? There is some evidence it has.

Combs is likely to suffer substantial prejudice from the consolidation of the three defendants' cases into a single trial. Barrow -- who would have a motive to pin the shooting on Combs to try to lessen his own apparent culpability -- swore out an affidavit stating that Combs carried no gun. So did the third co-defendant, Combs' bodyguard.

But now that all three men are being tried together, jurors probably will never hear these two witnesses say Combs had no gun that night -- for the men are likely to exercise their Fifth Amendment rights and refuse to testify.

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

Early proof problems for the government

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

Some witnesses will swear Combs had a gun that night, but several others -- called by the government to testify -- have said he did not. One club-going witness' contention last week at trial that she saw Combs with a gun crumbled on cross-examination.

Jennifer Lopez, too, reportedly said before the grand jury, without the protection of an immunity grant, that she never saw Combs with a gun that night. Listed as a witness by both sides, she will presumably testify at trial to that effect.

It only gets worse. Fenderson, the chauffeur, 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. Fenderson's credibility -- crucial to the bribery charge -- is potentially severely damaged by his big-ticket lawsuit.

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.

Julie Hilden, a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington firm of Williams & Connolly from 1996-99. Julie Hilden is also a FindLaw columnist.

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