Bill Cosby criminal case analyzed by defense attorney/former sex crimes prosecutor

Posted By Galluzzo & Arnone || 31-Dec-2015

Bill Cosby was arrested and arraigned on December 30, 2015 for allegedly sexually assaulting a woman in his home in Montgomery County, Pennsylvania in 2004. The arrest comes just days before the 12-year statute of limitation was set to expire for the crime. This case represents probably the only criminal prosecution that Bill Cosby is likely to ever face, despite the dozens of women that have come forward in the past fourteen months to claim that they were sexually assaulted by the famous actor/comedian.

The complainant, Andrea Constand (she has chosen to public identify herself), is a Canadian and former Temple University basketball player. In 2004, she was a Temple University employee that had sought out Bill Cosby’s mentorship. He allegedly made a couple of sexual advance on Ms. Constand that were rejected; indeed, it has been asserted that Ms. Constant is gay and was in a relationship with a woman at that time. Eventually, Ms. Constand went to Mr. Cosby’s home in Montgomery County, PA, and there, it is alleged that he gave her what he claimed were “herbal pills” that caused her to become incapacitated. Then, he allegedly sexually assaulted her.

Ms. Constand complained to a prosecutor in the ensuing year, but the prosecutor declined to press charges against Mr. Cosby, citing, among other things, that her accounts of the incident were allegedly inconsistent. Ms. Constand subsequently sued Mr. Cosby in civil court, and the matter eventually settled for an undisclosed amount.

A comedian, Hannibal Burress, reignited discussion about Mr. Cosby’s alleged crimes against a number of women by making a notorious joke in a stand-up routine a little over a year ago. Seemingly, that joke and the discussion it stimulated caused dozens of women to come forward and accuse Mr. Cosby of having raped them over the course of the past decades in manners similar to the one alleged by Ms. Constand. A variety of civil lawsuits are currently pending relating to those accusations, some of which focus on allegedly defamatory statements made by the complainants and Mr. Cosby himself about those complainants.

Moreover, the transcript of Mr. Cosby’s sworn deposition taken in connection with the Constand lawsuit was unsealed by a judge in Pennsylvania, over the strong objections of his attorneys. The deposition contained highly damaging and incriminating testimony from Mr. Cosby, who voluntarily disclosed that he obtained prescriptions for quaaludes for the purpose of giving them to women for sexual purposes, and also that he had indeed had sexual contact with Ms. Constand. Mr. Cosby quizzically asserted that during his sexual interaction with Ms. Constand he had been operating in the area between “permission and rejection” because, basically, Ms. Constand had never told him to stop touching her sexually.

During the past year, the Montgomery County prosecutor faced an opponent in the election that castigated him for not having prosecuted Bill Cosby in 2005. This candidate promised to prosecute Bill Cosby; interestingly, so did the incumbent that initially declined to prosecute him in 2005. Not surprisingly, the challenger won the election; seemingly, the incumbent’s failure to prosecute Bill Cosby in 2005 cost him his job.

Now, it seems that the newly-elected prosecutor has delivered on his promise to prosecute Bill Cosby for the alleged assault of Ms. Constand. The question now becomes: can he deliver a conviction?

Every prosecution for rape is difficult to win, but this is especially so where there are no “external” eyewitnesses or forensic evidence (such as medical evidence of physical injuries or intoxication), as is the case here. The evidence that clearly will be presented to the jury at trial includes the testimony of Ms. Constand, any “prompt outcry witnesses” that might exist, and the incriminating aspects of Mr. Cosby’s civil deposition testimony. The big question for this case is whether the other purported victims of Mr. Cosby will be allowed to testify at the trial. Clearly, if a parade of women are permitted to testify that they were assaulted in the same manner as Mr. Constand, then Mr. Cosby’s chances of spending the remainder of his life in a jail cell are going to increase exponentially.

Those other witnesses are probably not going to be permitted to testify, however. Generally, evidence of a “criminal propensity” to commit a particular act is not permitted at a criminal trial, as it is considered too prejudicial. In some cases, “modus operandus” testimony is permitted, if the method of the commission of the crime is particularly unique to the accused individual. However, this modus operandus evidence (which might include the testimony of other victims similarly assaulted) is generally only permissible to prove the identity of the perpetrator of the crime at issue, and here, no one is denying that Mr. Cosby had sexual contact with Ms. Constand. As such, this evidence probably doesn’t get introduced on the prosecution’s direct case. That being said, the decision will lie in the discretion of the trial judge.

However, Mr. Cosby and his attorneys will have to be careful not to “open the door” to this evidence of the other alleged assaults. Should Mr. Cosby claim that he would never give someone quaaludes against their will, or that he is a man that respects women and would never violate one, then he might give the judge a reason to allow the other women to testify to rebut those claims about his character. This puts him in a difficult position, because it is going to be hard for him to explain or defend his comments in his deposition about quaaludes without taking the stand personally and exposing himself to making this sort of devastating mistake.

Of course, Mr. Cosby’s other huge problem is that the people likely to be on the jury have probably already heard of the other victims through the media. The jury will be instructed by the judge not to consider anything that they have heard in the media in making their decision as to guilt or innocence, but one has to be skeptical that ordinary people can realistically ignore that instruction. After all, the prosecutor was elected by Montgomery County voters by promising to prosecute Bill Cosby – this suggests that those voters (now the potential jurors) have already formed an opinion on this case and want to see Mr. Cosby convicted.

The defense will have to argue that Ms. Constand has fabricated these allegations to further some personal agenda. This is going to be challenging given that she has already settled her civil case – after all, she has no obvious financial incentive to continue to be involved in this case at this point. To the contrary, she now has to be subjected to intense and violating media scrutiny to further this prosecution.

The defense will also of course argue that the sexual encounter was consensual, by pointing out that Mr. Cosby had clearly previously shown a sexual interest in her and yet she voluntarily went to his mansion alone and drank wine with him. They’ll also argue that if Ms. Constand was capable of seeing Mr. Cosby “sexually assaulting” her then she was also capable of saying no or resisting his advances. I expect that there will be medical testimony during the trial as to the possible effects of quaaludes on a person’s physical state and consciousness – by experts from both sides – to assist the jury in understanding this question.

Another interesting aspect of this case concerns the expectations of consent. Cosby, in his deposition, seems to reveal his perception that his sexual contact with Mr. Constand was acceptable because she never said no after he made sexual advances. Of course, there are many people that would assert that a women has to say yes before contact can occur, and not the other way around (as apparently espoused by Cosby). The law in Pennsylvania is not 100% clear on this point; as such, this case is potentially something of a referendum on how strictly liable a person must be held for failing to get “affirmative consent” for sexual contact. (Of course, if the jury concludes that Mr. Cosby intentionally drugged Ms. Constand against her knowledge so as to gain her consent or incapacitate her, then he’s going to be found guilty.) Plainly put, it’s possible that Mr. Cosby’s deposition admission that he never got her affirmative consent for sexual contact could get him convicted, period, but this depends on what the jury is instructed by the judge regarding the nature of consent, or what they conclude counts as necessary for consent.

The defense will argue vehemently that this prosecution is a politically-motivated lynching. They’ll point out that the original prosecutor – who was not facing widespread public media pressure – initially concluded that there was insufficient evidence to arrest Mr. Cosby. The new prosecutor, they’ll argue, promised Cosby’s scalp and is pursuing this case not in the interests of justice but to further his own career ambitions. This argument might have some traction with some jurors, but one must also acknowledge that the promise of a prosecution of Mr. Cosby seemed politically popular enough to get this new prosecutor elected, too.

There was a delay in the reporting of this case, which is a common issue in rape prosecutions. It is unsurprising that many rape victims need time to process the trauma that they have experienced and consider the pros and cons of engaging themselves with the intimidating criminal justice system. However, defense attorneys exploit these delays as evidence that a complainant has carefully weighed her options and concluded that s/he stands to gain (financially or otherwise) by making a false complaint. Here, Ms. Constand did not report the case to the police the next morning, but I expect that we might have some testimony that she told a close friend or family member shortly after the incident. Moreover, her persistence in pursuing this matter even after a civil settlement was reached would tend to suggest that her motivations are sincere.

Some jurors are just uncomfortable convicting a person in a “he-said-she-said” scenario, and Mr. Cosby’s lawyers are going to have to find jurors that they suspect fit that description. Ever since TV shows like CSI started offering up fictional tales of devastating and brilliant forensic evidence, some jurors have come to expect it in every case. There’s not going to be any forensic experts testifying about trace amounts of quaaludes in Ms. Constand’s system or DNA/injuries found on her body, and some jurors might get nervous about convicting a person without scientific proof of Ms. Cosby’s guilt. This is the case in almost every rape prosecution, unfortunately, as these crimes almost always happen between closed doors without additional witnesses and forensic medical evidence is typically not collected in time from the victim’s body to be meaningful.

In conclusion, I’m expecting a very interesting trial. One wonders whether the defense will choose a bench trial, in the hopes that a judge will be better able to put aside considerations of the media reports of other victims than would a jury (on the flip side, a judge would be under more political pressure than a jury not to make an unpopular decision). If I had to handicap the outcome, I think that a hung jury (mistrial) might be the best that Cosby can expect to do here, meaning that I think it is unlikely that he can convince the entire jury of his innocence in light of the negative and widespread public perceptions of him as a sexual predator. But I think it’s entirely possible that he is able to convince a few jurors of his innocence – enough to prevent him from being convicted anyway. However, this prediction rests entirely upon the assumption that the other purported victims are not permitted to testify at trial. If some of those other victims are allowed to testify then I think the scales tip heavily in favor of the prosecution.

The author of this article, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He has commented on this case for Reuters, HuffPo, Fox News, NPR, WURD (Philadelphia), the Canadian Broadcasting Company (CBC), and 98.5 FM (Montreal), among others. His opinions on sex crimes investigations have been published in other media sources including the New York Times, New York Daily News, BBC, CBS, the Associated Press, and dozens of other international sources.