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.
phillyT ; You need to get up to speed, bro.
Top 3 definitions of CONSPIRACY THEORIST In the Urban Dictionary:
1.) “A contemptuous term used primarily by the main stream media to slander anyone who questions their monopoly on truth.”
“Even though he has done his own research and has concluded that the official account of events is either lacking or inaccurate, he is still a conspiracy theorist because he does not believe what the main stream media proclaims to be the truth.”
2.) “A term in which its true meaning has been completely obscured. It is used to attack the credibility of people who seek the truth within crimes committed by the government. It used by those committing the crimes to make those who seek to expose them seem crazy and wrong.”
“The witnesses who heard a gunshot and saw smoke coming from the grassy knoll during the Kennedy assassination are conspiracy theorists. The witnesses who felt, heard, saw, and were harmed by explosions during the attacks on the World Trade Center towers basement levels on September 11, 2001 are conspiracy theorists. Anyone who believes the government doesn’t love you is a conspiracy theorist.”
3.) “A person who questions known liars.”
“Well, those activists were some crazy conspiracy theorists.”
Tom Nash
Amongst the non-financial costs are the physical and mental tolls of planning for and going to trial. That process will require him to relive and/or deal with a bunch of really unpleasant things. My prediction is that he will not be up to that task. So he will do a plea bargain.
His life is already a sh@t sandwich. Whether he goes to trial or not.
Don de Drain……..the alleged victim in this case will also face tough questioning from Cosby’s legal team, so that may be another reason that your plea bargain prediction may be correct.
My guess is still that this will go to trial, in spite of potential incentives/advantages of a plea bargain. If you’re in the Western U.S., I’ll bet you a beer on whether this goes to trial.☺
Thanks Lisa! That was hilarious satire. You forgot a bunch of the super conspiracy nut things about Obama, but that’s a super collection. Do you keep that list on your home computer or copy and paste it from Breitbarts or some such?
That really brightened my day! Thanks again and happy new year!
BFM, Indeed. 3 years could be the last 3 for a 78 year old man.
Nick…….I had thought that the max sentence for aggravated rape was more than ten years in PA. So your prediction of Cosby may be getting just a few years sounds like a strong possibility.
I’m reminded of the Polanski case, involve the drugging and (at least) statutory rape of the 13 year old girl. Sentencing guidelines were probably more lenient for those offenses in the 1970s, but I can see why Polanski split.
I think there was a “sweet plea deal” in the works that collapsed.
A criminal conviction certainly is very helpful in the civil case, but certainly not needed. Sometimes the pending or imminent civil cases can hurt the prosecution. The defense can probe that monetary incentive w/ the victim on the stand.
bam bam,
This case has already been decided in the media, correctly.
The DA brought these charges precisely because this case has already been decided.
The national democrat party is running a pro-woman campaign, for which this is “raw meat.”
The judge will be compelled to allow in the testimony of 50 victims of the same MO.
If a “Johnny Cochran” finagles another racist decision, there could be repercussions.
Bill Cosby has offended and disgusted the entire nation.
At some point, rationality, the law and the constitution must prevail.
If the SCOTUS can cavalierly commingle the definitions of “state” and “federal,” this judge will certainly have
the latitude to allow this undeniable and irrefutable evidence in and to allow the truth to get out.
Don de Drain….I missed the NON financial.in your post. I think his reputation is shot in any case, even if he’s acquited.
I can’t see that pleading guilty will help his reputation……might save some embarassing details surfacing at trial, but a guilty plea just confirms the accusations against him in the media.
We’ll see.
More likely a lesser sentence, 2 years maybe.
Even if convicted, I doubt he would get more than 5 years, serve 3.
Maybe so, Nick. But absent a plea deal, I think the prosecution is out for blood, and will try to pile on charges. Of course, if convicted, the judge holds the cards in sentencing.
@Nick: “Even if convicted, I doubt he would get more than 5 years, serve 3.”
At 78 that is a big hit.
And I would bet a conviction is bound to complicate defense in a civil suit.
It seems to me he might be faced with a choice to run down his fortune in criminal defense of in civil penalties – or my guess a bit of both.
Cosby won’t testify at trial because he will plead guilty. The non-financial “cost” of going to trial will be too high. Bet on it.
I think it’s more likely that he’ll pull out all the stops for a gold-plated defense…..his money won’t do him much good if he’s locked up the rest of his life.
Lisa N: I did not know about the expensive dog trainer. I do think Obama is a good dog owner and friend. I think he does receive guidance from his dog. If you want to blame anyone for all the things on the list then blame Beux or however ya spull his name. We are a military industrial state and this is one President who scaled things down just a tad hair. He also saved the economy from the Bushyboy Depression.
Why would a woman go out with this guy? What is the motivation? Does going out with a famous guy make you better, or is there a money angle? What is the money angle? Short term payout for a roll in the hay? Prospect for a role in a film? Get to meet other rich guys who run in his crowd?
Another series of related issues. Do any women enjoy sex themselves or do they do it for some sort of gain?
Some of the female dogs in the dogpac here do enjoy sex. None get paid. None get married. Some do not engage in sex much. They only engage when “in heat”. The male dogs do not have rubbers. Puppies are thence on the way. It is not like the human world.
Hey philly, how many hearings on Obama’s law breaking? I’m sure I left some out and some we don’t know about yet but let’s not forget allowing the NSA to spy on congress and that’s also an impeachable offense as Nixon was impeached for a lot less.
Obama’s accomplishments, he has done more than any other President before him!!
Here is a list of his impressive accomplishments:
1 ) First President to be photographed smoking a joint.
2 ) First President to apply for college aid as a foreign student then denies he was a foreigner.
3 ) First President to have a Social Security number from a state he has never lived in.
4 ) First President to preside over a cut to the credit rating of the United States.
5 ) First President to violate the War Powers Act.
6 ) First President to be held in contempt of court for illegally obstructing oil drilling in the Gulf of Mexico.
7 ) First President to require all Americans to purchase a product from a third party.
8 ) First President to spend a trillion dollars on “shovel-ready” jobs when there was no such thing as “shovel-ready” jobs.
9 ) First President to abrogate bankruptcy law to turn over control of companies to his union supporters.
10) First President to by-pass Congress and implement the Dream Act through executive fiat.
11) First President to order a secret amnesty program that stopped the deportation of illegal immigrants across the U.S., including those with criminal convictions.
12) First President to demand a company hand-over $20 billion to one of his political appointees.
13) First President to tell a CEO of a major corporation (Chrysler) to resign.
14) First President to terminate America’s ability to put a man in space.
15) First President to cancel the National Day of Prayer and to say that America is no longer a Christian nation.
16) First President to have a law signed by an auto pen without being present.
17. First President to arbitrarily declare an existing law unconstitutional and refuse to enforce it.
18) First President to threaten insurance companies if they publicly spoke out on the reasons for their rate increases.
19) First President to tell a major manufacturing company in which state it is allowed to locate a factory.
20) First President to file lawsuits against the states he swore an oath to protect (AZ, WI, OH, IN).
21) First President to withdraw an existing coal permit that had been properly issued years ago.
22) First President to actively try to bankrupt an American industry (coal).
23) First President to fire an Inspector General of AmeriCorps for catching one of his friends in a corruption case.
24) First President to appoint 45 czars to replace elected officials in his office.
25) First President to surround himself with radical left wing anarchists.
26) First President to golf more than 250 separate times in his seven years in office.
27) First President to hide his birth, medical, educational and travel records.
28) First President to win a Nobel Peace Prize for doing NOTHING to earn it.
29) First President to go on multiple “global apology tours” and concurrent “insult our friends” tours.
30) First President to go on over 35 lavish vacations, in addition to date nights and Wednesday evening White House parties for his friends paid for by the taxpayers.
31) First President to have personal servants (taxpayer funded) for his wife.
32) First President to keep a dog trainer on retainer for $102,000 a year at taxpayer expense.
33) First President to fly in a personal trainer from Chicago at least once a week at taxpayer expense.
34) First President to repeat the Quran and tell us the early morning call of the Azan (Islamic call to worship) is the most beautiful sound on earth.
35) First President to side with a foreign nation over one of the American 50 states (Mexico vs Arizona).
36) First President to tell the military men and women that they should pay for their own private insurance because they “volunteered to go to war and knew the consequences.”
37) Then he was the First President to tell the members of the military that they were UNPATRIOTIC for balking at the last suggestion.
38) First President to make a Deal with Iran to give Nukes to them while Iran Chant “Death to America”!!
************SATIRE************SATIRE************SATIRE************SATIRE************
Or is it ??
Happy New Year everyone! Watch till the end for some disco entertainment.
Al Sharpton Gets What He Deserves
As a woman, I have no sympathy for these women. Sorry, but we know the score. You go up to a man’s hotel room (a married man at that) to discuss your career and you know what that discussion is going to contain. It is fact of life. I don’t care who the person is, if you are going to have a ‘career’ discussion, you don’t do it in his room, unless you are accompanied by a few associates and it is a business meeting.
As a woman, and a feminist, I’ve known the score all of my adult life. You know when a man is trolling for more than career mentoring. I’ve been there and done that, and had brains enough to say no, and opt for a third party location. My humble opinion is they put out with a promise of services which were never rendered.
And yes – I think what he did was disgusting. I also think, given the alleged numbers, that we’re dealing with a sexual fetish. The man could afford women the old fashioned way, by paying for them, having a mistress, or just one night stands. He opted for something else.
Can you say kink?
P. S. Rule #2, if you are in a man’s hotel room, house, etc. and aren’t entirely familiar with him, you don’t take anything from him, even a glass of water.
John
As I stated before, I believe that this case will ultimately turn on whether or not the presiding judge allows the other purported victims to testify, which will help to establish a pattern of predatory conduct spanning decades. That is something that this particular judge will have to determine, and that decision will, in my opinion, make or break this case. I suspect that Cosby has hired the best criminal attorneys that money can buy and that they will mount a vigorous argument against the introduction of said prior improprieties. That one judicial decision is going to be paramount. Unlike Nick, I don’t believe that the decision regarding admissibility is already a given.
BTW, HAPPY NEW YEAR TO ALL. A HAPPY AND A HEALTHY ONE.
Tom, I don’t understand how women hire that dirtball Allred. There are many good plaintiff attorneys, including female ones, if one feels the need to have a female representing them. I wouldn’t hire her for a speeding ticket.
Nick….I guess because she’s got a number of big paydays/settlements, and continues to get a lot of free publicity with her interviews on “women’s rights”.
It’d be interesting to see if she takes cases targeting less affluent defendants for ” womens’ rights”, or only takes the big money cases.
Nick……there’s a picture of Allred on the web with the caption “I smell money”.
One Bill down.
One Bill to go.
And one Hillary.