The Prosecution and Defense of Bill Cosby

Episode Notes

Transcript

Intro: There’s nothing he’s going to be able to do to change the fact that popularly, he is now in perpetuity a rapist. Even if he wins the trial, he’s a rapist. He has been convicted without a trial in court of public opinion and there’s nothing he can do about it. I can’t ever imagine a situation where the prosecution just punted to the civil team and said, “Well we won’t go criminal as long as you won’t go civil.” That’s an unusual situation at least from what my experience is.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer. This is Bob Ambrogi coming to from Boston, Massachusetts. I write a blog called Lawsites and another blog called Media Law. My co host, J. Craig Williams, is in court today and not able to be with us. Before we introduce today’s topic, I’d like to thank our sponsor, Clio an online practice management software platform for lawyers. You can find out more about Clio at www.GoClio.com. Until recently, what many of us think of actor and comedian, Bill Cosby, we thought of the jovial dad, Cliff Huxtable, from The Cosby Show. But over the past year, at least 58 women have come forward alleging that Bill Cosby had drugged and sexually assaulted them at different times at different locations. Amidst a multitude of allegations from these over multiple years, now Bill Cosby is facing criminal charges in Philadelphia for allegedly drugging and sexually assaulting a former Temple University staffer there, Andrea Constand, in 2004. Today on Lawyer 2 Lawyer, we’re going to take a look at some of the legal issues surrounding prosecution of Bill Cosby. We’ll discuss the allegations, his arrest, the charges of sexual assault against him, and the impact on his public image and what the future may hold for Bill Cosby. Joining us today to do this are two guests, both criminal defense attorneys. First off, let me introduce Attorney Scott Greenfield. Scott is a criminal defense attorney out of New York. For more than 30 years, Scott Greenfield has represented clients charged with crimes or the targets of investigations in state and federal courts across the United States. Scott is also the well-known author of the Simple Justice blog, a criminal defense blog which can be found at Blog.SimpleJustice.US. Thanks a lot for joining us, Scott.

 

Scott Greenfield: Always a pleasure, Bob.

 

Bob Ambrogi: And also joining us today is Murray Newman, from Houston Texas. Murray is a graduate from the University of Houston Law Center where he graduated in 1999. Since then he’s been in criminal law both as a prosecutor and as a criminal defense lawyer. He’s handled criminal cases ranging from driving while intoxicated to capital murder. He served as an assistant district attorney until 2008, in the Harris County District Attorney’s Office as a felony chief prosecutor. In private practice since then, he continues to represent clients charged with criminal offenses in the State of Texas. In addition, Murray works as a legal consultant for the TNT television show Cold Justice, and author of the well-known blog, Life at the Harris County Criminal Justice Center​ which can be found at HarrisCriminalCountyJustice.Blogspot.com. Welcome to the show, Murray Newman.

 

Murray Newman: Thank you for inviting me, I’m glad to be here.

 

Bob Ambrogi: We’re glad to have you. So, Scott Greenfield, let me start with you. You wrote recently on your blog about this case that no matter what happens in the case, Cosby has already been convicted by the court of public opinion and there is no appeal. Is it possible for him to get a fair trial in this case?

 

Scott Greenfield: Well, it’s possible to get a fair trial. In fact, from pending motions, he may not go to trial at all. But that’s not going to change the fact that everybody who doesn’t look at this through a lawyer’s eyes is saying how can 58 women be wrong, how can they all be lying, he must have done this, where there’s smoke there’s fire. And there’s nothing he’s going to be able to do to change the fact that popularly, he is now in perpetuity a rapist. Even if he wins a trial, he’s a rapist. He has been convicted without a trial in the court of public opinion and there’s nothing he can do about it.

 

Bob Ambrogi: Murray, how about you? What’s your view on that question of whether he can actually get a fair trial.

 

Murray Newman: Well, it’s always a dicey thing when you have this much media across the nation. Because typically, if you’re trying to find a fair trial, you’re trying to find a location where somebody hasn’t heard enough facts to prejudice them. When you have somebody as famous as Bill Cosby and as big of a story it’s been, it’s certainly a difficult one. I agree with Scott that regardless of whether or not he can find twelve neutral jurors to judge his case in the court of law, he has pretty much been ruined from a reputation standpoint.

 

Scott Greenfield: To add to that, I believe he’s already had his honorary degrees withdrawn from 28 different universities at this point. Nobody wants to wait until somebody finds Bill Cosby guilty of anything. They are rats leaving that sinking ship as fast as they can. And frankly, that is the message. It doesn’t matter whether he’s convicted or not convicted. He is never going to be able to recapture whatever life he’s had before these allegations were so prominently made public.

 

Bob Ambrogi: He was in fact the commencement speaker at my son’s graduation from college just a few years ago at the University of San Francisco and that is among the honorary degrees that has been revoked. Scott, you mentioned that he may not even go to trial and I assume that you’re alluding to the news today, the motion I guess that was filed indicating that the prior district attorney, Bruce Castor – who just recently lost an election and was replaced by Kevin Steele and Kevin Steele was the one who brought these charges. But Cosby’s attorneys are saying that basically Cosby had a deal with his prior district attorney that there would be no criminal prosecution.

 

Scott Greenfield: Well, that’s what it sounds like and it makes perfect sense. Apparently, Castor thought that if anything was to come of this it would come through a civil suit. And Cosby, in order to be deposed as a party to a suit, would have to waive his Fifth Amendment right. And the only way you waive your Fifth Amendment right is if you’re not going to get prosecuted. So Castor made a deal saying, “I won’t prosecute you, so therefore you have no Fifth Amendment right. Take the deposition and pursue the suit.” And that’s what happened back in 2005 and 2006. I’m not sure what remedy he’s going to get from that, whether it’s going to be dismissal, whether it’s going to be refusal of the prosecution. But if that’s how he was induced to waive his Fifth Amendment rights to be deposed, then that may be a significant block to any prosecution in this case.

 

Bob Ambrogi: Well, they filed a petition for writ of habeas corpus of the motion to disqualify the Montgomery county district attorney’s office. I don’t do criminal law at all, so you could fill me in on this, but had that happened, had there been an agreement, would that typically just be a verbal agreement or would there be something in writing?

 

Scott Greenfield: Well, I would suspect there would be something in writing, frankly. I would be kind of surprised if Cosby’s defense lawyers didn’t require that because as a practical matter, we’re not the kind of people that trust a handshake very much, particularly when our client’s freedom is at stake. So I would expect that there’s something that would memorialize this, whether it’s on the record, whether it’s in writing, but there would be something to show that this did in fact happen.

 

Bob Ambrogi: They didn’t attach anything to the pleadings they filed yesterday. They did say that Mr. Castor, the former DA, is willing and ready to testify on this. But nothing produced.

 

Scott Greenfield: That’s quite a surprising tactic on the part of his attorneys who represented him at the time. But I guess today they’ve got to go with whatever had happened. And as Castor’s testimony or affidavit to the effect that this was in fact the deal that he induced him to waive his Fifth Amendment privilege, that would be sufficient to make their case.

 

Bob Ambrogi: Murray, you’re a former prosecutor and here we have a case where gain, the former prosecutor here declined to prosecute after investigating this concluding that there wasn’t enough evidence to take this on. Now this new district attorney has come in saying, essentially, that there is new evidence based on all these women who have come forward. As a former prosecutor yourself, what’s your take on that? Are these allegations from these women sufficient due evidence to revise these criminal charges?

 

Murray Newman: I think that the short answer to that is yes but I don’t even know that there has to be new evidence. In fact, the new elected DA is saying that there is new evidence seems more like his justification on why he’s doing it now so that he can kind of deflect the accusations that he’s doing it just for publicity. I think that as long as the statute of limitations is still open then they can file it. They can do it now, you can have a difference of opinion from a previous administration that could be sufficient. I think that the more likely remedy on these depositions is that if there was some sort of nod and a wink type deal that they wouldn’t prosecute him if he wouldn’t testify in the deposition it would be to exclude whatever came from those depositions. I think that’s probably the more likely remedy that Scott is talking about. Because I just can’t ever imagine a situation – or at least I never personally saw one – where the prosecution just punted to the civil team and said, “Well we won’t go criminal as long as you won’t go civil.” That’s an unusual situation at least from what my experience has been.

 

Bob Ambrogi: What about what you think about the evidence in this case? Except for the fact of these women coming forward, the evidence of what happened in this specific incident really comes down to a he said she said kind of situation, doesn’t it?

 

Murray Newman: Absolutely, and most of these cases do. We typically refer to these as date rape type cases because knowing that that’s a pretty broad term but it’s not a stranger on stranger case. And in almost all of those cases it comes down to a he said she said. If no one is disputing the sexual intercourse occurred, it all comes down to consent. And so someone’s got to say, “Hey, there was consent,” then the other party’s going to say there wasn’t. So by definition it’s he said she said.

 

Bob Ambrogi: Yeah, there’s no forensic evidence at this point. Scott, what about you? What’s your take on the evidence in the case or the lack thereof? To what extent can these statements from all these other women become an issue in this trial if this goes to trial?

 

Scott Greenfield: That’s a very interesting point. In this particular case, the constant claim is probably the strongest of any of the allegations that have been raised because she came forward soon afterwards to alledge that this was a rape. And many of these, I think one in LA, it was 50 years later. People waited and only came forward after this had hit the media. Now that would make her position a little better. As far as bringing in all these people, you’ve got two problems. One would be that it would suggest propensity, which is evidence that you’re not allowed to introduce to show that because a guy may have done a lot of other crimes, he had a propensity to commit this crime and therefore, he committed the crime he’s on trial for. On the other hand, if a judge accepts the premise that this was his modus operandi, this was a common scheme and plan that he used in order to get women intoxicated to rape them, then other women’s allegations may very well come in to prove that this was a method that he used over and over again. Now if that happens, you still get the problems of propensity. It’s a hugely prejudicial issue. And I’ll tell you, that’s a very damning thing.

 

Bob Ambrogi: Does that mean that they march all of these women through the courtroom and have all of them come in and testify?

 

Scott Greenfield: Well, I’m pretty sure they would handpick a few because already we’re finding that a number of these women’s allegations are not bearing out. But I’m sure that there will be others that present better witnesses or a stronger case. I don’t know how many the prosecution might pick, but a few of them marching through, that would be likely if they were allowed to introduce that evidence.

 

Bob Ambrogi: So what is the defense in this case put to both of you, Scott and Murray’s defense attorneys? If you were Bill Cosby’s attorney right now, what would you be looking at as a defense strategy?

 

Scott Greenfield: Go for it Murray.

 

Murray Newman: What was that?

 

Bob Ambrogi: He said go for it, Murray.

 

Murray Newman: If I was his defense attorney what I would be doing right now is struggling to try to keep your eyes on strictly the case there in Pennsylvania and doing everything I could to exclude anything that would mention any of the extraneous cases. Because if you look – at least on what I’ve read in the media about that case – if you attack it just as a single case, you have a lot more to work with. Specifically the fact that your complainant in the case ultimately maintaining a friendly relationship with Cosby. That would certainly be something that would be off putting to a jury as long as they didn’t hear that right behind it were 50 some odd other complaintants. So that’s kind of what you would at least hope to be able to do. Now whether or not a judge would let you do that is another story.

 

Bob Ambrogi: Scott, how about you?

 

Scott Greenfield: I think Murray’s exactly right and the point about the friendly relationship that Andrea Constand kept is also a similar theme that you’re going to find with most of the women who have made allegations that after their alleged rape happened, they either continued to have sex with Bill Cosby anyway. They continued to live in his house, be friends with him and have an ongoing social relationship. Many of them went back with him to help them out with their lives, with finances, with jobs. So you have a very peculiar situation throughout all of this and that women who are now claiming they were raped afterwards are hanging out with their alleged rapist. And people have a tough time understanding how that could possibly happen. People don’t hang out and be friends with their rapist. People don’t engage and continue sex with their rapist. That’s not how rape victims are supposed to behave. So I think that’s really where the push needs to be that this proves it was consensual because only consensual partners continue to have sex, continue to be friends and continue to enjoy the social company of that person.

 

Bob Ambrogi: We’re going to take a quick break. We’re going to be right back with more conversation about the criminal charges against Bill Cosby.

 

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi. My co host, J. Craig Williams, is away today. We’re talking about the criminal charges filed against Bill Cosby with our guests, criminal defense attorneys Scott Greenfield out of New York and Murray Newman out of Houston, Texas. We were just talking about the defense strategy in the case. What are the challenges to the prosecution in this case? Murray, you’re a former prosecutor. What does the prosecution have to do here?

 

Murray Newman: The first thing they have to do is explain that this is not just about celebrity. I’ve talked to people in the past and the thing about trying a celebrity is that general society thinks mistakenly that they’re friends with that person. They think that they know Bill Cosby. They think that they grew up with Bill Cosby. I know I grew up watching Bill Cosby, I’m sure Scott’s children did too.

 

Scott Greenfield: Ouch, ouch.

 

Murray Newman: You have this feeling of familiarity of generally liking him. So you have to worry about that. You have to be very constant about the fact that you know the defense is going to attack your victims and say they just want money or they want attention and fame. And that’s going to be a big trick to try to offset. Picking a jury is also going to be near impossible for a prosecutor because who hadn’t heard of this case?

 

Bob Ambrogi: Is that a challenge for the prosecutor or the defense or both?

 

Murray Newman: Both. Because ultimately, the prosecution is the one that wants the jury picked and tried. The defense is happy to have busted panel after busted panel of people where they can’t get a jury because they hope ultimately the prosecution’s going to say to hell with it and either offer them something, a plea bargain that they can take or just say we can’t get a fair trial and give up on it.

 

Bob Ambrogi: Scott, you want to play prosecutor for a second?

 

Scott Greenfield: Actually yeah, I do, but one thing. This is not a case that’s going to plead. There’s no way in the world that Bill Cosby Is going to plead to anything in this case. If it proceeds to trial, this one’s getting tried to verdict. But as far as the prosecution’s concerned, they’ve got one ace in the hole that I don’t think is appreciated. Most of these allegations – including I believe they go back to ‘65 – are bitten, viewed through the lens of a phenomenon called presentism. Which is where you take conduct that happened at a different time under a different social norm. And you view it through the prism of current social norms. And right now, we’re in a very peculiar time in society where we suddenly discovered this concept of sexual consent where yes means yes, which did not exist a couple of years ago and was about as far removed from social reality as humanly possible back in the 70’s and 60’s. So they’ve basically got as toxic an environment as humanly possible to view Cosby’s conduct with Constand, with any other witness who may come forward and be allowed to testify about him. If they are looking at it through the way rape is viewed today where an overt agreement, verbal approval, some sort of affirmative, enthusiastic consent must be given or it’s deemed to be rape. So he’s in a peculiar position because of Cosby was to testify truthfully as to we drank, we did some drugs, we had sex, did you ever ask for permission, no. Did you know she was drinking, yeah. Did you know she had drugs, well yeah, I gave them to her. In today’s mind, that’s pretty much the definition of rape. But that was not the case at the time. And he’s now going to suffer the definition of consent in 2016 for conduct that happened in 2005 when that was not the way rape was viewed.

 

Bob Ambrogi: That’s an interesting point and that even extends a little bit to the drug of choice here that he used with Constand which was quaaludes, which I think from what I know it was a more common drug maybe a generation ago, I think that quaaludes are now more widely used.

 

Scott Greenfield: Well, not to be too much of a quaalude expert here, but quaaludes were a fairly common drug used amongst young people and it was not like roofies where today the date rape drug, the drug that was used to incapacitate a woman, people willingly, happily did quaaludes. It was simply one of those drugs of choice and it would be considered downright rude for a guy with a girl not to offer her quaaludes. If you had drugs, you shared them. That was just the way the norm went at the time. And today quaaludes seem very ominous and terrible, but that wasn’t always the case. And there was a time where refusing to share your quaaludes with a woman would be considered downright offensive. It’s just not the way it is.

 

Bob Ambrogi: And I forget what the allegations were here. My understanding is that he offered her these pills but my understanding is that he described them as benadryl or something like that, not as quaaludes. But she did take them and use them. What brought a lot of these accusations out, of course, was the making public of his deposition testimony from this case which was made public last Summer. And in that deposition, he shows a pretty loose attitude towards all of this. He doesn’t seem himself as a criminal, but he almost sounds like he’s proud of a lot of what he was doing. Does that deposition testimony come into evidence in this trial?

 

Murray Newman: I would think not. If they could show that agreement, I think you could make the argument that it wasn’t voluntary if he thought he was giving it in exchange for the case not being prosecuted. I think you could exclude it on those grounds, perhaps.

 

Bob Ambrogi: Scott, do you agree with that? Do you see it that way?

 

Scott Greenfield: I would think so and I think that would be the minimum that I would expect if there was an agreement for him to waive his Fifth Amendment rights and give that deposition. What’s interesting, Bob, is you talked about his rather casual attitude towards this whole thing. Another presentism phenomenon that’s at play here is that Bill Cosby is an older fellow and was reared in a time when men were expected to seduce women, to do whatever they could in order to get a woman in bed. And I’m not suggesting that they would give them drugs to incapacitate them, that’s an entirely different attitude, but the idea that they didn’t go and ask permission and say mommy may I is hardly a surprise. And in fact, the law – up until very recently – was that all sorts of deceit and deception and lies and manipulation was basically fair game for a guy who wanted to get a woman in bed.

 

Bob Ambrogi: Does that fly with the jury when we’re talking about a guy who would have been in his 60’s and a married man at his 60’s at the point that it’s a habit?

 

Scott Greenfield: I’ll tell you, I’d want to pick an older jury and if I got an older jury in there, they’d be saying, “Go, guy! You still go! Go for it!” That’s because they don’t see any problem with the idea of a guy trying to get a girl to have sex with him. And a guy in his 60’s, there’s an element of acquiescence to the fact that he’s still interested in sex at all. That’s another interesting jury selection concern.

 

Bob Ambrogi: Yeah. And of course, part of her point was why in the world would I be interested in sex with him when he was 30 something years my senior.

 

Scott Greenfield: There’s an easy answer to that: He was a world famous fabulously wealthy celebrity and she wasn’t.

 

Bob Ambrogi: Yeah. Anybody want to predict the future of this if this goes to trial? Anybody want to take a guess as to how this turns out?

 

Murray Newman: I think it’s tossed up case, because as many pros as you have with all the different people that have come out of the woodwork claiming that they’ve been assaulted by Bill Cosby, you could also make the argument that it was a bandwagon that they could jump on. And that can cut both ways. There are a lot of elements in this case that cut both ways, including civil lawsuits and a number of people that have come forward. I think it’s actually fair game, except as Scott mentioned, he’s already lost in the court of public opinion.

 

Bob Ambrogi: Scott, how about you?

 

Scott Greenfield: I think Murray’s right. As far as the trial’s concerned, there’s a lot of variables still to be figured out. Whether or not they’re going to allow other women to testify against him, whether or not he’s going to prevail on his motion to recuse the prosecution. There’s an awful lot of open questions on this case. But the one thing I feel pretty confident about is that Bill Cosby is going to go to trial if he has to. And if he has to, he’s going to fight. And it’s going to make for one really messy trial.

 

Bob Ambrogi: Alright, well we are just about at the end of our time. And before we wrap up for the show, I’d like to give each of you an opportunity to give your closing thoughts. Maybe you just did, but if you have some further thoughts on this, you’re welcome to do that and also let our listeners know how they can follow up with you and find out more about your work. So, Scott Greenfield, let’s start with you.

 

Scott Greenfield: Well, I’d like to thank you for having us and I’m happy to have this chat. Especially with somebody who I respect as much as Murray. He’s a brilliant prosecutor, he’s a brilliant defense lawyer, and I’m just thrilled to know that he doesn’t call me old in every sentence. For anybody who wants to read anymore of this stuff, I am also writing at Fault Lines. And Murray is our resident prosecution expert at Fault Lines and really would love to have everybody come and read, take a look. We try to present all points of view, we try to give everybody as honest a sense of the criminal justice system as humanly possible. I hope you all come over and take a look and I hope you find what we write to be worth your time. And thank you, Bob.

 

Bob Ambrogi: Yeah, thanks, Scott. And where I saw where you, Scott Greenfield, recently had an interview with Murray posted there at Fault Lines. So there you go. You could go read the two of you having an interview with each other. Okay, Murray, your final thoughts.

 

Murray Newman: First of all, Scott’s missing out by mentioning his own blog, Simple Justice. If you really want to read some of the most insightful writing on criminal law, you should go check out his blog there. I did write on my hand, “Don’t call Scott old so much,” so I remember-

 

Bob Ambrogi: You forgot to look at your hand!

 

Murray Newman: But Scott is someone I’m honored to have as a friend and as someone that I get to work with at Fault Lines. It’s a great collection of some fantastic criminal law writers from around the country. I think this Cosby case has the potential to get as much attention as O.J. did in the ‘90’s because it’s really changing the dynamic of how you look at a person one way before the allegations came and how you look at them now; it could really change a big dynamic. I’m more than happy to answer any questions. If anybody wants to contact me on Twitter, it’s @MurrayNewman and thanks for having me on the show.

 

Bob Ambrogi: And that brings us to the end of this episode of Lawyer 2 Lawyer; I’m Bob Ambrogi. Thanks a lot to Scott Greenfield and Murray Newman for taking the time to be with us today to share their thoughts and insights on the Bill Cosby prosecution. To all of our listeners, thanks for listening. I hope you’ll join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

 

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