Bill Cosby Retrial
S.E.: Bill Cosby is back on trial for a second time, facing three counts of Aggravated Indecent Assault. The case, which got underway with the prosecution’s opening statements yesterday stems from accusations by a former Temple University employee. Andrea Constand says Cosby drugged and assaulted her at his home near Philadelphia back in 2004. The defense argues, “It was a consensual sexual relationship.” You may remember Cosby’s first trial ended with a hung jury last June. Today, in court, Cosby’s defense wrapped its opening statements as the first witnesses began to take a stand. I want to bring CNN legal analyst Page Pate to discuss this. So, Page, there’s no solid forensic evidence in the case. Prosecutors will be relying heavily on Andrea Constand’s testimony. But what about other witnesses the prosecution plans to call on the stand?
Page: Well, S.E., I think the prosecution is going to rely heavily on those other witnesses to try to show that this is a pattern of conduct for Bill Cosby. I think the first trial ended with a hung jury because the jury was split and could not believe that this one allegation would be enough to convict somebody like Bill Cosby, who they’ve known probably throughout their entire lifetime. So the prosecution thinks if we can show a pattern of this type of behavior, we have, you know, a couple, three, four, five other people who are gonna come to trial and testify that he did something similar to them, perhaps that will be enough to push the jury from, “We don’t know,” to guilty.
Page. And, you know, S.E., these cases, you rarely have forensic evidence. Because most of the time, it’s not a question of whether there was sexual contact of some kind, it’s whether there was consent.
Page. So that’s always gonna come down to testimony.
S.E.: So in the first trial, the tsunami of #MeToo had not fully hit. Should the defense be worried that the #MeToo movement will have an impact on the jury in this second trial?
Page: Well, they have to be aware of it. And I believe the defense attorney in his opening statement today made mention of that and basically said, “Look, it may seem easier in this environment to convict someone of sexual assault because of what you’re hearing in the news, what you’re reading online. But you have to stay focused in this trial on the specific evidence relating to Mr. Cosby. So they’re smart to go ahead and deal with it right out of the box. We’ll see at the end of the day what difference it makes.
S.E.: Well, yesterday, we heard about a $3.38 million settlement paid out by Cosby to Andrea Constand. Is it a bad strategy for the defense to attack her over this settlement and call her a “greedy con artist?”
Page: You know, that’s a tough call. I mean, every defense attorney in a sex assault case has to decide, “Am I going to go after the alleged victim? Do I think she’s not credible enough that I can impeach her in front of this jury?” But on the flipside, the fact that Cosby’s lawyers paid this kind of money to resolve these allegations may also suggest that it’s consciousness of guilt.
Page: So I think the defense has obviously decided, “We’re going to go after her.” And they may be able to show that she was interested in money. But what about the other five people who are gonna testify.? I mean, they can’t just attack one victim, they’ve gotta go after everyone. So I don’t know, at the end of the day, that’s gonna be enough.
S.E.: All right. Thanks for keeping us updated. I appreciate the analysis Page.
Page: Thank you, S.E.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.