The Cosby Charges: When Silence Speaks Loudly

ht_bill_cosby_booking_photo_float_jc_151230_16x9_608The 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.

105 thoughts on “The Cosby Charges: When Silence Speaks Loudly”

  1. I find no reasonable explanation for why this became such an issue recently based on a no-name stand up comic’s night club insult. These allegations occurred for decades, and at least this one was semi-public. People claim industry rumors followed Cosby for decades. So why now?

    1. I think that’s an excellent question. I don’t know the answer. I don’t know that there is an answer at all.

  2. His m.o.allegedly is basically roofying his victim. His victims were more than trailer trash..,he gets trial no doubt punished…..while millions of other victims just suffer and wonder. Cuz know whats missing from his chRges….is the federal jurisdiction drugs. The feds are right there to to prosecute raich for growing a few plants for her own medical consumption….but date rape drugs.,,,,the feds dont even care enough to piggy back this trial with charges. What is our war on drugs? Drugs that incapacitsted for sexual gratification are legit? While drugs grown and used personnally and hurt no one else… god we go the commerce clause for that. Asd wipes.

  3. Hey, let’s be more accurate in your references. Although Cosby did the show “Kids Say the Darnedest Things” it was based on Art Linkletter’s same-named segment of his shows in the 50’s – 60’s or so. After all we have to keep the level of this blog at it’s absolute highest despite some of the cantankerous quality of some of you ignoble respondents.

  4. If they ever want to take Sanford and Son to the Broadway stage, Cosby’s a shoe-in for Redd Foxx.

  5. OK one more quick one.
    To Hilde and Lisa:

    Y’all really made my day. When I read comments like yours that leave me speechless, well, I really am stopped in awe and astonishment.

    I mean, the three stooges are just verbal slapstick on this board, but you two take the shock to a whole new level.

    Total. Respect.

  6. Johnny Johnny Johnny…

    I have bad news for you.

    Those National Treasure movies with Nic Cage are NOT documentaries.

    Those Da Vinci Code movies with Tom Hanks? Not real either!

    Your fantasies, or delusions, or hallucinations, whatever you prefer to call them, that there are secret messages hidden within the Constitution? They’re not real. There are no secret messages hidden in the Declaration of Independence. Or the dollar bill. Or the maps of Washington D.C.

    But I have some good news for you! Your Obamacare policy for the new year should be kicking in, which means you can get your prescriptions filled and get back into counseling. I’ll bet there are others in your life wishing the same. Make this the year that you stop believing crazy stuff and get your life back on track.

    I’m done here.

    With the exception of making an actual comment about the women who spent any time with Bill Cosby. Maybe they all knew he was a creep and a rapist, but I doubt it. I never heard even a rumor about it until the whole story broke. So why would an actress, or aspiring actress spend time with someone extremely rich, famous, and powerful? Seems pretty obvious to me that they were hoping to advance their careers. So as stupid, or naive or whatever they were, it’s not a reason or good excuse to rape them. Blaming them for this is just another way of saying “you shouldn’t have dressed like that.”

  7. To reiterate, the court will be compelled by public reaction to allow in the testimony of the similar victims of similar crimes with a similar MO. To wit,

    NBC NEWS –

    “The law generally prevents the prosecution from admitting a defendant’s prior bad acts because we are afraid that juries will convict defendants because of something other than the crime for which he is being tried. But there are exceptions,” said Wesley Oliver, who is the criminal justice program director at Duquesne University and has served as a NBC News legal analyst.

    But when defendants have a “modus operandi” — when their crimes almost bear the defendant’s signature because they are committed in such a similar way — rules of evidence dictate that testimony from other very similar crimes can be admitted.”

    1. Sounds good. I sometimes drive from WA. State to Phoenix area via I-5. Will collect on the bet at some future date😉

  8. Barkindog and PhillyT-> Your comments have no more affect on anyone, anymore than William Jefferson Clinton’s proclamation “I did not have sex with that woman”. Lmao

    Obama created Donald Trump! He will be elected president. I rest my case. Lol

  9. MSM TV newsman Brian Williams was fired soon after we learned his alleged heroic military exploits were lies made up to endear him to war mongers (i.e, gullible average Amerikanz). Polls showed how far he dropped on the Amerikanz “trust” scale.

    And who topped the list on the Amerikanz “trust” scale? A man who makes his living convincing persons he is someone other than himself, professional actor Tom Hanks. Amerikanz most often trust the honesty of a celebrated professional liar paid hundreds of millions dollars to lie.

    Even if Bill is guilty (I don’t know or much care either way), all this professional actor has to do is walk up there and do what’s earned him several hundred million dollars, act like a non-rapist. Talk to a professional therapist to find the exact personality traits of a non-rapist and act them out for audience (jurors).

    I’m not saying every woman deserves to be raped for being alone w/a male “celebrity,” but it’s not exactly rocket science that celebrity status generally comes w/an inflated sense of self and self righteousness. Am I the only one who remembers the sex pervert Michael Jackson hanging his baby upside down by the feet outside a hotel window, and of course Jackson walked away unharmed by the law for that crime. And thinking he, as an adult, deserved to sleep w/children, saying it’s completely normal?

    Generally, the greater is one’s celebrity status the worse is their personality.

Comments are closed.