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Lessons from Bill Cosby’s criminal prosecution

Fairfax criminal defense attorney Jon Katz on the lessons from Bill Cosby's prosecution. Jon has been defending those charged with sexual assault and other crimes since 1991, pursuing the best defense

Jan 08, 2016 Lessons from Bill Cosby’s criminal prosecution

Much has been written about the sexual assault accusations and now criminal prosecution against Bill Cosby. I often hesitate to write about celebrity and other high-profile prosecutions, not wanting to make said defendants seem any more important than more anonymous criminal defendants. However, with so many people discussing Bill Cosby’s situation, that creates a common denominator from which to provide my following thoughts, some of which may go beyond what ordinarily is being discussed about his case:

– This and all other prosecutions should not be fodder for gossip. Gossip is poison.

– How can Cosby get a fair jury, when the allegations of sexual assault against him have been running throughout the airwaves for so long?

– Like all criminal defendants, Bill Cosby is presumed innocent in his criminal case unless and until proven guilty beyond a reasonable doubt.

– Cosby has the right in his criminal case to remain silent, and not to have his silence held against him. If the public wonders why he is not addressing his criminal case more, the public needs to know it is wise for him to keep his silence, unless he decides to waive it in court out of a calculated decision that his testifying will do more good than harm towards a possible acquittal.

– In deposition testimony in a civil lawsuit, Cosby allegedly admitted to having had Quaaludes several times with him, to use as one would offer a drink, and that he provided them one time. Here is where people must be advised and warned that rape does not only require that the alleged victim say “no” (no means no, always), but that a rape conviction is also risked when the alleged victim does not have the ability to say no or to realize what is happening, for instance when the person has been too influenced by alcohol or drugs.

– Cosby would have been safest with his criminal defense had he not testified in his civil case deposition(s), by asserting his Fifth Amendment Constitutional right to remain silent. However, had he declined to so testify, that would have weakened his defense in his civil cases. Civil case defendants who risk prosecutions are always having to balance between testifying in the civil case to reduce their financial risks in the civil case, against their liberty interest in remaining silent in the event of a prosecution.

– If Bill Cosby did indeed commit any sexual assaults, it again illustrates  Publius Terence‘s apt reminder that Homo sum: humani nil a me alienum puto./I  am human: nothing human is alien to me. 

– For a long time, I looked up to Cosby. I loved his animated show and his stand-up routines. Here is a sampling of his performances, and of course his great spoof on Barry White, which, also also turned out to be a mid-1970’s prelude, or interlude, to his extramarital sexual activities. I very much feel the dissonance between Cosby the great artist and Cosby the alleged rapist. Regardless of the outcome of his criminal case, his historical legacy has been permanently marred by the allegations against him.

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