The charges against Bill Cosby are now filed and Cosby is out on bail pending his aggravated assault trial. Below is my column on the trial and what will likely be a core question for the defense: should Bill Cosby testify? It is a common question in celebrity trials and many prefer silence to the stand.
Last January, Bill Cosby stood before an audience at a stand-up comedy club in Ontario and joked, “You have to be careful about drinking around me.” The crowd roared, but there is nothing funny about allegations that Cosby is a serial rapist who drugged his victims.
Almost a year later, Cosby is facing the ultimate punch line: an indictment for the rape of a woman, Andrea Constand, in January 2004. He had an audience of one this time: Judge Elizabeth McHugh, who released him in exchange for posting $1 million bail and turning over his passport.
As this case moves from the comedy club to the courtroom, Cosby is about to face the stinging reality of a celebrity at trial. The notion of a softer “celebrity justice” is a myth. Celebrities are often given harsher treatment in prosecutions. Indeed, celebrity trials are a national pastime in America. Judges and lawyers are transported into their own celebrity realms, while the public sits back to watch the ultimate reality show unfold.
This trial has everything that a legal voyeur craves from a celebrity trial — part The Great Gatsby and part The Wolf of Wall Street. The 78-year-old comedian is accused to taking Constand home to his grand mansion outside Philadelphia. The former director of operations for Temple’s women’s basketball team, Constand alleges that Cosby gave her three blue pills that left her in a stupor. Cosby allegedly said the pills were just meant to “take the edge off” and told her that they were herbal.
Cosby then allegedly raped her, and she woke up the next morning partially undressed. And then, Constand says, came a moment out of one of his Jell-O pudding commercials: He gave her a muffin and sent her on her way.
Cosby has admitted to giving prescription Quaaludes to women he wanted to have sex with. However, he has claimed that the sex was consensual. He previously stated in a civil deposition that he fondled her. He said he took her silence as consent while she insisted it was because of the drugs he gave her. Indeed, Cosby maintained in the deposition that silence is golden for an older man seeking a younger woman: “I don’t hear her say anything. And I don’t feel her say anything. And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.”
Putting aside Cosby’s view of the value of silence in sexual encounters, he is likely to find that it does not work quite as well in a courtroom. It is common for criminal defense attorneys to keep their clients off the stand, which is their right. Testifying comes with huge risks for the defense, from opening doors to suppressed evidence to incriminating statements to conflicting accounts. After all, as entertaining as Kids Say the Darndest Things was in the 1990s, when defendants say the darndest things, they get long-term imprisonment.
However, celebrities do poorly when they refuse to the take the stand. Just ask Martha Stewart, who remained silent at her trial and was handed a jail sentence. So was former representative William Jefferson of Louisiana, who refused to take the stand and was given 13 years to think of what he might have said.
This does not mean that it is not sometimes wise to stay silent, but celebrities face a different dynamic in a courtroom. Jurors tend to want to hear from a celebrity, and the refusal to speak can reinforce the view that a celebrity views himself above society or the victim or, worse yet, the jurors. That is particularly dangerous when the celebrity is accused of treating women like sexual wind-up toys. Moreover, Cosby has spent his career talking to everyone. The 12 jurors holding his life in their hands won’t take it lightly if they are the only ones outside his target audience.
The case is not without evidence that might be used successfully by the defense. After all, the defense can attack Constand for returning to his home after two prior sexual advances, which she said she rebuffed. Then there is the fact that she did not go to the police for a year.
Given such areas of attack and the prior depositions to use at trial, Cosby may again decide that silence is his salvation. However, as with jokes, a defense is all about timing and delivery. Unlike a joke, when a defense bombs, crickets are followed by convictions.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.