Bill Cosby case should be resolved by a plea bargain

Happy New Year to everyone.

The Bill Cosby case should be resolved by a plea bargain because both sides have too much to lose if it is not.

Consider the following:

Kevin Steele, the recently elected District Attorney for Montgomery County Pennsylvania, charged Bill Cosby with a single count of aggravated indecent assault that is alleged to have occurred in January 2004. Steele filed the case last Wednesday to prevent the expiration of a 12-year statute of limitations. A failure to file the charge within the limitations period would have barred this case. If convicted, the crime is punishable by a sentence of five to 10 years in prison and a $25,000 fine. A judge set bail at $1 million and Cosby avoided going to jail by posting a $100,000 bond.

CBS News is reporting,

Prosecutors accused him of rendering former Temple University employee Andrea Constand unable to resist by plying her with pills and wine, then penetrating her digitally without her consent, when she was unconscious or unaware of what was happening.

She was “frozen, paralyzed, unable to move,” Montgomery County District Attorney-elect Kevin Steele said in announcing the charges. He said it is unclear what type of pills Constand was given, but he noted that Cosby has admitted giving Quaaludes to women he wanted to have sex with.

Cosby acknowledged under oath a decade ago [during a deposition] that he had sexual contact with Constand but said it was consensual. Calls to his attorneys were not immediately returned.

A deposition is a formal pretrial discovery proceeding in civil cases that usually takes place in a lawyer’s office. A duly certified court reporter places the deposition witness under oath and records the questions asked by the lawyer and the answers given by the witness. The object of a deposition is to question the witness regarding every aspect of the case and lock the witness into each answer to eliminate ambiguity. After the deposition, the court reporter prepares an official transcript of the deposition and provides a copy to each lawyer. A deposition is not a public document, so the lawyers cannot disclose what a witness said unless a judge grants permission to do so.

In this case, the lawyer representing Andrea Constand questioned Cosby and got him to admit that he had sexual contact with her after giving her Quaaludes. Since the case was settled before trial for an undisclosed sum of money, Cosby’s deposition remained confidential and was not provided to the police or to the district attorney. I believe that may explain why the district attorney initially decided not to charge Cosby. The situation changed last summer when a judge granted a prosecution motion to unseal Cosby’s deposition. The judge granted the motion because the civil case ended with the settlement and the deposition contained material evidence that the prosecution needed to prove its case against Cosby.

Nevertheless, assuming the criminal case goes to trial, there is a significant Fifth Amendment issue regarding the admissibility of Cosby’s statement. The Fifth Amendment provides,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(emphasis added)

Cosby’s admission during his deposition in the civil case probably will not be admissible in the criminal trial since it is a ‘compelled statement’ under the Fifth Amendment. That is, because the Fifth Amendment only applies to criminal proceedings, he could have been compelled to answer questions during the deposition. In that sense, his testimony was compelled.

The prosecution may not be able to prove its case against Cosby without his admission because no corroborating forensic evidence exists and the victim, Andrea Constand, waited for a year to report the incident to police. To shore up its case, I think the prosecution will call six to twelve of the more than two dozen women who have publicly accused Cosby of sexually assaulting them in similar fashion by incapacitating them with drugs so they cannot resist his advances.

Pennsylvania Evidence Rule 404(b) permits the prosecution to introduce evidence of uncharged prior misconduct in a criminal case, if it is probative of a defendant’s intent, motive, opportunity, plan or absence of mistake or accident. I believe the misconduct described by the women is admissible pursuant to this rule.

Whether the prosecution can prove its case with this prior-misconduct evidence remains to be seen. The possibility that it can provides the defense with a strong incentive to avoid trial with a plea bargain while the possibility that it cannot provides the prosecution with a strong incentive to plea bargain.

20 Responses to Bill Cosby case should be resolved by a plea bargain

  1. Trained Observer says:

    IMO serial pervert Cosby and his enabling wife are far too arrogant to go for a plea bargain … not that it likely would be offered after the contentious election. Cosby’s victims deserve seeing him in court at his own trial, just like they deserved to see him do the gray sweater perp walk to his arraignment.

    That must have come as a shock to the slimeball after getting by with his treatment of Constand and the others all those many years. The mills grind slowly but they do grind.

    Happy New Year to all …

  2. roderick2012 says:

    “Cosby’s admission during his deposition in the civil case probably will not be admissible in the criminal trial since it is a ‘compelled statement’ under the Fifth Amendment. That is, because the Fifth Amendment only applies to criminal proceedings, he could have been compelled to answer questions during the deposition. In that sense, his testimony was compelled.”

    I was wondering about this issue too. If the judge in this case allows testimony from the civil case to be introduced in the criminal case that would set a precedent and all DA’s would have the victim sue the defendant in civil court and use the civil court testimony against them in the criminal trial.

    As for a plea bargain I believe that the DA has painted himself into a corner by filing these charges and he needs a conviction which includes some jail time.

    If the DA offered a plea deal it would confirm that he was just playing politics and I am sure that Cosby’s lawyers would make sure they got the best deal for their client.

    BTW professor if you were defending Cosby which trial would you want to take precedence?

    The civil trial or the criminal trial?

    My guess is that the civil trial will be settled out of court so Cosby’s lawyers can concentrate on defending him in the criminal trial.

    • If the judge in this case allows testimony from the civil case to be introduced in the criminal case that would set a precedent and all DA’s would have the victim sue the defendant in civil court and use the civil court testimony against them in the criminal trial.

      Wouldn’t work because criminal cases are fast-tracked and civil cases have to wait.

      As for a plea bargain I believe that the DA has painted himself into a corner by filing these charges and he needs a conviction which includes some jail time.

      I agree. He trapped himself into having to file because he made it a campaign issue. Problem is that it’s a weak case that he may not be able to prove.

      • roderick2012 says:

        Well the judge let Slager out on bail because his trial was postponed until October due to the Dylan Roof trial. I guess they only have one DA in that county. It doesn’t matter any way since Slager won’t be convicted. This is just another way of delaying the trial until the public interest wanes and hoping that Scott’s family get preoccupied with life.

        BTW can Slager opt for a bench trial or is a jury trial his only option?

        We know Van Dyke will opt for a jury trial.

  3. Two sides to a story says:

    I think women’s rights activists will be disappointed by the outcome of this case. It’s important that Cosby’s victims came forward and that he has been exposed, however. It’s too bad this couldn’t have happened in a more timely fashion and then perhaps fewer women would have been victims of his behavior.

    • bettykath says:

      You make a good point, but women who have been raped, even by non-celebrities, have a hard time being heard. What chance would they have against a Dr. Huxtable celebrity?

      • girlp says:

        25 to 50 years ago not taken seriously at all, you had to be beaten and bruised to be taken seriously most women were told to suck it up and don’t put yourself in that situtation again many were even told to lay back and enjoy it. It appears Bill Cosby may have been a predator he knew what he wanted to do really more ritualistic in behavior. These women’s accounts do not seem contrived or conspired but they are similar. They were invited by him under the ruse he was going to mentor them or for some other reason. Others were sent by their manager/supervisor almost all had no intention of having any sexual relationship with him. He has made jokes in the past about spanish fly (these jokes were made often) and I have recently read that it was common to drug women at the Playboy Masion where Cosby visited quite often. Hugh Hefner was not much better from what I read. His career is over and ending badly for Cosby but I guess that how karma goes. Cosby failed to look at his actions and behavior throughout his life but lectured others on theirs…He is a hypocrite.

  4. bettykath says:

    It seems that Mr. C is facing two trials: one criminal trial as mentioned above and another civil trial brought by 4-5 other victims. I was confused by the deposition required of his wife who served as his business manager. Could she then be called to testify at his criminal trial? Usually spouses are not required to testify, but could she be required to testify as his business manager, depending, of course, on what she has to say in her deposition? I expect that as his business manager she would know about hush money payments.

    • Malisha says:

      Probably “hush money payments” wouldn’t prove much because celebrities may make them regardless of whether or not there was any criminal behavior involved. A male celebrity may, for instance, make hush money payments to support a child whose mother claims that she bore a child by him, when in fact the activity that led to the birth was not illegal. I know a woman in NY who has brought a child up very well, in quite luxurious circumstances, because his putative father is an international celebrity who never demanded a paternity test and who never was associated with the child or the mother in any way since the pregnancy. The kid just graduated from an Ivy League college and he bears his mother’s name.

      • bettykath says:

        Any man who is facing the prospect of paying child support and there if is a question of paternity, should insist on a paternity test. If it’s his child, he should pay child support, even enough to provide luxurious accommodation if he is that well off. Not his child? No child support. In the case you mention, I see no problem with this child of a possible one-night stand or a longer term relationship being raised in the kind of luxury that his sperm donor could afford. Men need to learn that they also have a responsibility for pregnancy prevention.

        • Malisha says:

          I hope I didn’t sound like I thought it was inappropriate. I was completely in agreement with the celebrity’s decision to pay generous child support for his child. My reason for bringing it up was to show that “hush money” whether paid all at once or all along does not, ipso facto, prove there was illegal activity on the part of the celebrity; it can merely be a convenience if there is something the celebrity doesn’t want to share with the world.

          • bettykath says:

            Thanks for the clarification. I did think you were judging. For me, it doesn’t matter if the celebrity thinks he is paying hush money, I see it as child support. And he’s a jerk for denying his paternity, which should have been established quietly before payments. Children should know their father, even if they are jerks. Kids figure the jerk part out on their own eventually.

    • Because of the marital privilege, she could not testify about communications with him unless they were in pursuit of a crime, but she could testify about her job and what she did. Communications about hush money probably aren’t protected.

  5. Malisha says:

    Also, it should be resolved by plea bargain because Cosby should, by now, just plain admit that it was criminal behavior and let his lawyers work out a deal. I mean, c’mon…

    About admissions during a compelled civil deposition, I am interested in this question: if certain conduct is non-criminal under certain circumstances but criminal during other circumstances (say, going to an ex-wife’s house, which is not criminal UNLESS a valid protective order is in place and has been served) would you think it is possible to hold just one combined trial (such as divorce), require testimony relating to the divorce (“so at the time that you saw the moving van taking away the valuable grand piano, did you ask Mrs. Smith to refrain from removing it from the marital abode?” or “So at the time that you had the moving van remove the grand piano, did Mrs. Smith ask you to leave the piano where it was?”) and then at the end of the divorce trial, make one order, divorcing the parties, dividing the property, and jailing the husband for violation of the protective order?

    • No, I don’t believe we’ll see combining criminal and non-criminal accusations because of conflicting presumptions and burdens of proof. With rare exceptions, criminal cases go first because of the right to a speedy trial. If a person is convicted, they would be estopped from denying liability in the civil case. That would limit the case to a trial about damages.

      • roderick2012 says:

        What exactly do they think Camille Cosby knows?

        IIRC there was guy who said that he personally delivered ‘hush’ money to the ‘victims’ and I am sure that Mrs. Cosby was home raising their five children and not with her husband on the road or in Hollywood.

        • I don’t know what they think she knows, but she was his business manager . . .

        • Trained Observer says:

          I think Camille knows about a boatload of financial payoffs, and she knows what for. She knows about his long-time sexual affairs that did not involved drugging and rape (imagine that!), and she knows her husband is a Grade A creepster.

          She also may know about other transgressions, sexual and otherwise, with others who have yet to come forward, including possible members of his family.

          • roderick2012 says:

            The entire world knows. Again what’s the point of calling her except to humiliate her?

            There are other witnesses to the payoffs.

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