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.
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.