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.
The pure communism of affirmative action as dictatorial social engineering, adversarially imposed Bill Cosby
on American lives.
The defective, aberrant and criminal “content of his character” will remove him.
John,
Your argument is as feeble as the one where people pretend that “A well regulated Militia” has nothing to do with a well regulated militia.
There is one, and only one reference to the law of nations and it goes like this:
“To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”
If you think that is a reference to a book, with no evidence to back that up, then you’re just making things up. Yes, the actual book was popular, as were the works of Locke, Montesquieu, Paine, Mill, Hobbes and the Articles of the Iroquois Confederacy.
You look for explanations and shadows where there are none, because you’re upset about the man in the White House. Too bad for you. We survived Bush (barely), and you will survive Obama.
bam bam,
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.”
bam bam,
“The trial court did not err in allowing testimony of alleged similar transactions over objections.”
__________
COLBERT v. THE STATE.
Court of Appeals of Georgia.
Decided March 8, 1979.
McMURRAY, Judge.
Defendant was indicted in two counts for forcible rape (Count 1) and armed robbery (Count 2). He was subsequently tried and convicted as to both counts. He was sentenced to serve 20 years on each count to run concurrently. Motion for new trial was filed and after a hearing denied. Defendant appeals. Held:
2. The trial court did not err in allowing testimony of alleged similar transactions over objections. In the prosecution of a particular crime evidence which in any manner shows or tends to show the defendant has committed similar crimes wholly distinct, independent and separate from that for which he is on trial, the same is relevant and admissible if there be some logical proof that one tends to establish the other. See Foster v. State, 230 Ga. 666, 667 (1) (198 SE2d 847); Young v. State, 146 Ga. App. 391, 394 (2) (246 SE2d 711). Such evidence of similar transactions has been liberally extended in cases of sexual crimes. Sudlow v. State, 140 Ga. App. 146, 147 (230 SE2d 106). The modus operandi of the perpetrator in the case sub judice was shown to be the same as to the similar crimes.
The testimony of other alleged victims would be highly prejudicial and jeopardize any conviction, which will be appealed.
The burden of proof is much lower in civil cases. And that suits the Gloria Allred’s of the world because she is lower than whale feces. This women deserve good plaintiff attorneys, Allred is not even close to being good.
bam bam,
The court will be overwhelmed and compelled to allow the testimony of 50 victims who suffered the same crime by the same perpetrator.
I’ve watched some “legal consultants/legal correspondents” on CNN, FOX, etc. (Not interested in the opinions that idiot Nancy Grace on “her” network).
Anyway, there is a range of opinions from “it’s a slam dunk for the prosecution” to “Cosby’s defense attorneys can mount a strong, viable defense”.
The civil side of this is of interest to me. Anytime Gloria “$$AllGreen” is involved, a major payday is likely to follow.
John
If, and/or, when, this matter actually goes to trial, there is a crucial matter that will be the determinative factor, which I don’t believe has been addressed as of yet on this thread. If it has been addressed, and I managed to somehow miss it, my apologies. In my humble opinion, a turning point in any future Cosby trial will be whether or not the presiding judge agrees to allow the multitude of accusatory women to take the stand regarding their experiences with Cosby. If their stories are admitted, Cosby is toast. It will ultimately be up to the judge to decide whether to allow their respective stories into evidence or to reject the admission of said stories. Allegedly, according to a lawyer representing some of his purported victims, these women are raring to go and testify against Cosby, despite the fact that they have been barred by various statutes of limitation to pursue their own cases against
Cosby.
Let’s be clear here. Bill Cosby is the poster boy for affirmative action and affirmative action is pure communism, specifically, social engineering.
Saying Bill Cosby is conservative is a lot like saying Colin Powell is conservative when, as we know, Colin Powell accepted Ronald Reagan’s gift of affirmative action, betrayed Reagan and campaigned and voted for the affirmative action unconstitutional liberal democrat candidate, Barry Soetoro.
Oh hell yes. Bill Cosby is conservative.
Can you say Tawana Brawley? Cosby was a rabid, frothing-at-the-mouth, liberal extremist supporter of that fraudulent anti-American campaign.
“Public response to Brawley’s story was at first mostly sympathetic. Actor Bill Cosby, among others, pledged support and helped raise money for a legal fund. In December 1987, 1,000 people, including Nation of Islam leader Louis Farrakhan, marched through the streets of Newburgh, New York, in support of Brawley.”
“After hearing evidence, a grand jury concluded in October 1988 that Brawley had not been the victim of a forcible sexual assault and that she herself may have created the appearance of such an attack. The New York prosecutor whom Brawley had accused as one of her alleged assailants successfully sued Brawley and her three advisers for defamation.”
Wiki
Bill Cosby and Barry Soetoro endeavor mightily to “fundamentally transform” America – even fraudulently.
That doesn’t seem to be what the American Founders put in the Constitution.
There seems to be a “fundamental” conflict in need of severe resolution.
What was that the Founders wrote, “thank God for affirmative action?”
No. I think it was “…to ourselves and our posterity,…”
John,
Just to be clear, the written work “Law of Nations” is NOT referred to in the Constitution. The phrase “law of nations” appears in reference to piracies and the laws of the high seas. Nice try tying them together but they are clearly unrelated.
Also pretty certain that as much as we appreciated the help we got from the French during the Revolutionary War, we did not reference the works of any French philosophers, including Emerich de Vattel in the Constitution.
This is much like the people trying to link Obama’s birth to the British laws governing their colonies in Kenya in reference to Obama’s father. Quite simply we don’t follow British law, nor French law. We wrote and follow our own Constitution. So back to my previous post: please get help.
I do not see any way, under the rules of evidence, of getting any of these other women’s allegations into evidence. Now, potential jurors who want to get on the jury will lie, claiming they have not read or seen any press on these many women. You can bet on that. But, these many other women will not be OFFICIALLY known to the jury.
“Once 50 similar victims of 50 similar crimes get in, Cosby is toast.”
I think you are right that if they can get those stories in then Cosby has some real problems.
One woman might have lied. Two might have colluded. But scores of women over decades, all over the country would seem to present a formidable problem for Cosby.
Of course the question is how much of that can the prosecutors get before the jury.
BarkinDog
“The cross examination of the so called victim here is more important than Cosby testifying.”
Seriously? You just said that.
It’s a:
He said
She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said She said
ad infinitum.
Once 50 similar victims of 50 similar crimes get in, Cosby is toast.
Lisa,
Please make a list below citing the number of hearings held concerning the 60 embassy deaths that happened while Bush was president.
Go ahead, I’ll wait…
Bush lied, Chaney lied, Rumsfeild lied blah blah blah. I guess the leaders England, Germany, Kuwait, Saudi Arabia and the UAE all lied because they ALL had the SAME intelligence!
How convenient a liberal’s memory is. . . . then when Obama lies lies lies. We all hear crickets.
http://4.bp.blogspot.com/-wDTisZPbpRE/UcrwLi-XsBI/AAAAAAAAAng/b8qa257ccN8/s640/benghazi+lie.jpg
There was a brief mention of Cosby being conservative and it activated the mutant BDS virus w/ the wacky, vapid, INCESSANT stupid, stale comments ensuing. Get Jerry Lewis on the horn, we can revive his career helping the lame once again.
Karen,
I did not bring up Cosby’s political leanings, and until the three stooges started mentioning it here on the board as “the only reason he is being prosecuted” it hadn’t even occurred to me.
Scroll back up through the comments and see who brought Cosby’s politics into the discussion. Maybe you can ask them to take personal responsibility for getting the discussion onto that track. Conservatives are all about personal responsibility.
I don’t actually care what anyone’s political leanings are when it comes to rape. Rape doesn’t have an R or a D with it in my book.
I do think it’s pretty ridiculous that people who were so upset with Clinton had no problem whatsoever with Bush and Cheney’s war crimes, but I won’t defend rape, sexual assault, sexual battery, etc. no matter who the perpetrator.
Maybe Jerry Lewis can do a telethon to cure BDS. He needs work. We have some good candidates here to be Jerry’s kids.
One of the most maddening aspects of liberalism is the same stale lines year after year. When do they find a cure for BDS?