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.
TAKING A STAND ON TAKING THE STAND: THE
EFFECT OF A PRIOR CRIMINAL RECORD ON
THE DECISION TO TESTIFY AND ON
TRIAL OUTCOMES
Theodore Eisenberg & Valerie P. Hans†
This Article uses unique data from over 300 criminal trials in four
large counties to study the relations between the existence of a prior criminal
record and defendants testifying at trial, between defendants testifying at
trial and juries’ learning about criminal records, and between juries’ learning
about criminal records and their decisions to convict or acquit. Sixty
percent of defendants without criminal records testified, compared to fortyfive
percent with criminal records. For testifying defendants with criminal
records, juries learned of those records in about half the cases. Juries rarely
learned about criminal records unless defendants testified. After controlling
for evidentiary strength and other factors, statistically significant associations
exist (1) between the existence of a criminal record and the decision to
testify at trial, (2) between the defendant’s testifying at trial and the jury’s
learning about the defendant’s prior record, and (3), in cases with weak
evidence, between the jury’s learning of a criminal record and conviction.
For cases with strong evidence against defendants, learning of criminal
records is not strongly associated with conviction rates. Juries appear to rely
on criminal records to convict when other evidence in the case normally
would not support conviction. Use of prior-record evidence may therefore
lead to erroneous convictions. We also find little evidence that prior-record
information influences credibility. This casts doubt on the historical justification
for prior-record evidence: its presumed effect on defendant-as-witness
credibility. Prosecutors and judges should consider the increased likelihood of
erroneous conviction based on the use of prior convictions in decisions to
prosecute and in evidentiary rulings.
Juries always want to hear the Defendant deny it, and hold it against the Defendant if he doesn’t testify. The only question is whether that can be overcome.
Statistically, the chances of a criminal defendant being convicted are north of 95%. What is the defendant “risking” by testifying? Usually not much.
There are times when it’s not really a risk, of course, in the sense that putting the Defendant on the stand will be a disaster. But if that’s not the case, it’s almost always worth the gamble.
Constand no doubt contributed to her situation. Man by nature want to have sex with every living female, so she had to have known he would be attracted to her for that alone. She chose to go back to his home after his making sexual advances, she chose to take the drugs, she chose to drink alcohol and she chose to wait a year to report it. Even if he was guilty, she made it easy for him!
Not Guilty!
The key to the case will be the so called “victim’s” testimony and appearance. If I was Cosby I would gather up all the photos out there in the world where she is wild and crazy at parties. I would get her doctor and pharmacy records. I would depose her doctor and pharmacists.
She waited a year. A year. And then we get this earful.
And Judge! A million dollars bond for a porking event which occurred eleven years ago. How could a 78 year old artFay even remember what happened in 2004? I would want some old artFays on the jury panel and in jury selection I would ask them if they recall porking anyone 11 years ago.
Such a shame Cosby was one of my heros
The Science Geek
http://www.thesciencegeek.org
Bill Cosby can argue what the meaning of the word is “is” if he mans up and takes the stand.
In contrast Bill Clinton got a free pass and even went to pedophile John Epstein’s private orgy island (with its own sex slaves) without anyone batting an eye.
Oh, Cosby’s black. Now I get it.
Girls gone wild…Chippendale guys warm up female engines. Cosby can’t match them.
Good piece. I doubt Cosby will testify. I think he will be convicted. I doubt he serves more than a year, if that. Finally, where the hell does he get his Quaaludes? They were taken off the market decades ago.
I do not know which dork is uglier on these photos at 8 a.m. in the morning. Muslim arsonist or Cosby rapist. Both are ugly until proven innocent and innocent of the crime until proven guilty beyond a reasonable doubt.
Shave and a haircut six bits. Then ask the women if he paid them for sex and if he paid them in any fashion or method? Ask him if he paid them. If the jury believes that this person is a hooker then this case could go away. I would find someone else who paid this woman for a roll in the hay and put him on the stand. I would like to see any and all statements she ever made to any doctor, nurse, pharmacist about either the rape or her need for drugs. Lady: you waited a year? What is coming out next year?
If I was the defense lawyer I would have fans in the stands with tee shirts which have the logo on the front which says: Pork em if ya gottem.
Can the prosecution put into evidence Cosby’s depositions statements referenced in the article here?
For the defense: 1. If he raped her then why did she go back to his home one or more times thereafter? 2. Did she eat the pills willfully or did he hide them in a glass of cool aid?
3. Did she ever say no? 4. Did she go to the police later the day or day after the so called rape?
5. How old was she? 6. Is she also suing him for money? 7. Ask her in deposition if she has ever traded sex for money. 8. Did he pay her any money? 9. What is a hooker in this day and age? 10. How long ago did this happen? 11. How many other men has she porked since then?
12. Ask the women on the jury panel: if they would consensually pork the guy sitting there in the defendant’s chair? 13. Ask the women on the jury: if he is an ugly dork whose photo should not be published on blogs early in the morning? 14. Ask the women on the panel : Did you ever pork and receive some money?
Golfer, Tiger Woods had sex with twice as many women. No drugs were reported to be used and no women ever complained.
Except ex-wife which led to $100 million divorce settlement. Slob in bed versus sexually pleasing dynamo with lots of cash is another factor. Think of it as an eagle, a hole in one.
Martha Stewart got a jail sentence because people didn’t like her. She was convicted for “lying” but the prosecution didn’t have to show that what she said was untrue. I’m not sure her failure to testify had anything to do with her conviction.
“We don’t know what was in the “blue pills”, and the only evidence as to what they were will be coming from Cosby – uncontradicted then that is what was in them.”
Apparently Cosby has given conflicting accounts of the blue pills. The WAPO reports that he told Andrea that the pills were herbal, her mother the pills were prescription, and investigators the pills were benadryl. We may not know what was really in the pills. But those conflicting accounts might greatly undermine Cosby’s credibility – which would seem to be key to his defense.
In addition, the mother claims that in the same telephone conversation where Cosby claimed the pills were prescription he also offered to pay for counseling for Andrea.
My recollection is the offer for counseling has been substantiated by documents and remarks by other persons. That offer for counseling might support the mother’s story and also support the claim that Cosby told different stories about the blue pills – which would make Cosby a liar.
If I had to bet, it would be the circumstantial evidence will be so compelling that Cosby will have use use his great talents for persuasion to convince the jury that he is harmless and it is all a misunderstanding.
He has admitted to dispensing Quaaludes to women with whom he wished to have sex. Given the fact that Quaaludes work to suppress one’s central nervous system and can result in coma or death, I wonder whether any of his victims simply never had an opportunity to wake up from one of these alleged assaults? Combining this drug with another sedative, like alcohol, only exacerbates the deadly effects of this drug, and many of his accusers recount instances of being plied with both pills and booze by our dear Dr. Huxtable.
Generally a person who is physically disabled either by mental incapacity, unable to resist, or under significant influence of a drug cannot by law give consent to sex as far as sexual assault statutes are codified. Couple this with Mr. Cosby’s alleged deception as to the nature of the pills which reportedly caused this woman to remain motionless his defense will be challenging.
As for this woman returning to the Cosby home after this event being possibly exculpatory evidence it might be but consider also the situation of a rape alleged against a family member who returns to the residence after the fact several times. That in itself is not complete defense of rape. Moreover, rape shield laws might become involved if any evidence is to be suppressed.
It is my belief also that waiting until weeks before the expiry of the statute of limitations along with the omnipresent reporting of his sexual improprieties might appear to a jury as being an opportunistic prosecution. Perhaps the defense will try to play Mr. Cosby as being a victim of the media and the charges might be evidence of these two possibilities. But, this is more of a hail Mary pass in my view.
Regardless, whatever the outcome it certainly is not going to end well for Mr. Cosby.
One would think from reading about the start Roman Polanski’s troubles, Quaaludes would be avoided as a dating experience.
Let us see where this goes.
We don’t know what was in the “blue pills”, and the only evidence as to what they were will be coming from Cosby – uncontradicted then that is what was in them.
If it turns out to be valerian root for example, then there is no way that she couldn’t affirmatively object to his advances, and the sex was consensual.
Wow. Mr. Jell-O sure looks old and worn out. If he does decide to take the stand, he should should keep the snow-white scruff, shuffle up to his seat to testify and use a cane during the charade. Those few things, alone, will score some points with a jury still enamored with him from The Cosby Show.
Wow. Well written, hard hitting, and on point all the way. Bravo.
Mr. Turley: Would you defend Bill Cosby, if asked, and paid appropriately? Really, just curious. After my wife read about Bill’s hugely generous philanthropy to apparently great causes (not to be confused w/philandering), she felt sorry for his current situation.