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.
bigfatmike
Ha! Of course you are right!
I was trying to be generous.
PhillyT:
I think the point being made is that Cosby’s politics are being dragged into it, which may not have happened if it had been a Liberal. When do you hear about an alleged serial rapist’s Liberal leanings, unless he was a politician? What does he have to do with Bush? People are seriously stretching it to blame Bush for Cosby being a rapist, or use some sort of moral equivalence. Don’t forget that Hillary and Bill supported the Iraq war at the time, as well.
Is Bill Cosby a bad person because he is a conservative? I do not blame the Democrats for the “Filner headlock” in which a Democratic politician was a serial aggressor. Why are Cosby’s politics material? Because there are quite a few rapists and murderers in prison as we speak who vote Democratic.
I don’t recall, but were Stephen Collins’ politics used to smear a political party when the 7th Heaven star was found to be a pedophile? What about the man who voiced Elmo? What is relevant is when such public figures put themselves forth as role models, which makes their betrayal particularly heinous. But both Republicans and Democrats, and I dare say Libertarians and Independents, are capable of hypocrisy and vile deeds. Voters in either party may pretend to be a role model while leading a secret, abhorrent life. Looks at JFK. He apparently was a complete man whore, even during his years in the White House. Not a rapists, but certainly not the upstanding role model he pretended to be.
The cross examination of the so called victim here is more important than Cosby testifying.
Bill Clinton lied about having sex with an intern. George Bush lied about torture, Iraqi weapons of mass destruction, 9/11, and cost us thousands of American lives and trillions of dollars.
For conservatives those are about equivalent.
“For conservatives those are about equivalent.”
No they are not. Conservatives know hitting on an intern is much worse.
Dick Cheney??? WTF? Are you the Canadian? LOL.
This appeared on my FB feed. I thought it was interesting, not saying I agree but food for thought:
â
Bill Cosby is a conservative like Dick Cheney (who admitted to war crimes banned under binding international treaties).
So-called “Liberals” simply want a fair trial for both suspects!
“Drugging and raping several dozen women is definitely NOT his problem.”
Sexual predation is acceptable if you’re on the left, that’s the point you’re evading.
Frank, Felice Anno Nuovo. “Good as Clinton??” Everyone knew he was lying. My 15 year old daughter knew it.
One of the critical considerations is his believability on the stand and ability to communicate with the jurors. He has been an actor and public speaker for decades. He is a thespian. The question is, is he as good as Bill Clinton:
https://youtu.be/KiIP_KDQmXs
Can anyone remember details of all 365 days of a single year decades ago? That’s precisely why the Framers of the U.S. Constitution designed “speedy trials”.
How can witnesses, plaintiffs or defendants even remember in sufficient detail, under penalty of perjury, the precise details from so many decades ago? Material witnesses also pass away and sometimes can’t remember things. Some (not all) prosecutors also game the system this way.
Not saying Cosby is right or innocent, but if the charges had been brought when the alleged crime happened decades ago the truth-seeking process would have been more accurate than waiting decades.
Exactly right Paul! Drugging and raping several dozen women is definitely NOT his problem.
I’m sure though, that being such a staunch conservative he will be personally responsible for whatever he might have done.
Paul, Absolutely. That is not his only problem, but that is definitely part of the dynamic.
Cosby’s problem is that he is black and conservative.
Bam Bam:
You are completely right. He dispensed prescription medication to a female without, apparently, taking into account dosage or size or combination with alcohol. She is lucky she survived. Rendering anyone incapacitated also makes them incapable of giving consent. How can anyone say yes or no if their mouth doesn’t work because they’re on Qaaludes?
I believe that taking steps to ensure your own safety is not blaming the victim. Most parents advise their daughters on how to do their best to stay safe. And of course they wouldn’t blame them if the worst happened.
You do not take drugs or excessive alcohol, especially while with a man who’s made advances to you before. When I went to college, there were rules the girls followed when we went to frat parties. Do not get separated from your group. Do not drink the punch. Do not agree to go look at anyone’s fish tanks. It’s just a fact of life that there are men (and women) out there who will take advantage of someone while they’re incapacitated. And the number one rule is if, in the unfortunate event, a girl is assaulted, she should go directly to the police and put the jerk behind bars. I am disappointed that with around 40 alleged victims at this point, not a single one of them went to the police when the evidence was intact. I greatly sympathize with the pain, shame, and shock they must have been in, but am saddened that, unless I am mistaken, not a single one of them stood up to him while time was of the essence. This never should have been a “he said, she said” case. If he had been stopped years ago, think of all the victims that could have been spared.
I do not blame the victim. If he was a man she trusted, and he told her they were some kind of herbal supplement, she may have believed him. I’ve shared herbal remedies like cough medicine and vitamins with my friends for them to try. Some of his other (many) alleged victims were partiers who thought they were doing recreational drugs with him, and didn’t realize he would also rape them, or that he would incapacitate them.
I am so disappointed in Bill Cosby.
So far the “trial-by-media” appears to indicate he is guilty, but in a real trial or “test” of the evidence it also requires “risk if perjury” for his accusers.
There are also other complicating factors like profit-motive for celebrity defendants (years later) and our dysfunctional plea bargain system where some (not all) prosecutors essentially play poker with a weak hand (ex: threaten life in prison or plead to a felony without jail time). It is also hard to imagine Cosby could find a non-biased jury following the “trial-by-media” and even receive a fair trial.
In the 1990’s Richard Jewel (Atlanta Olympics) received a guilty verdict from the “trial-by-media” system which resulted in the defamation and premature death of an innocent man. At that time everyone also thought he was guilty.
It sure looks like Cosby is guilty but these types of legal precedents also harm thousands of poor defendants, mostly African-American, who cannot afford a high-priced attorney. Giving our highly dysfunctional justice system a pass on Cosby ultimately harms poor defendants.
Why would a woman take drugs, knowing it could render her helpless or unconscious?
Because this woman knew full well she was partying with a married celebrity and chose to come back after his supposedly unwanted sexual advances.
She’s a Jezebel. All of them are, except any female celebrities, they don’t need his influence or his money or his companionship. If the prosecution is smart, he or she will subpoena a female celebrity that he’s supposedly done the same to. It would be the only testimony that would convince me he did it without consent. Otherwise, their just opportunists, in my opinion.
“it’s disingenuous”
Interesting. Are there stats on this issue? The study I pointed to suggests that testifying is a bad idea, especially if there are priors.
Well, one of the reasons a defendant won’t testify is that if he does his priors become fair game, whereas if he doesn’t the priors won’t be used. But there are situations where even if there are priors a defendant is better off testifying. In the case at issue, I would sAy that Cosby will almost surely testify, and he should
Why would an adult female need to take 3 unidentified pills on top of alcohol from a man whose advances she already twice spurned, in his mansion alone at night?
Why would he need to give them ludes if it was consensual? Did he have a fetish for unconscious women?
NYTimes in 2005:
The party line for prosecutors is that it’s a bad idea for Defendants to testify, but it’s disingenuous. If the defendant testifies and does well, the prosecutor loses, and it’s one of the few ways prosecutors actually can lose.