As we in Canada deal with our own “trial of the century” featuring former radio host Jian Ghomeshi, in Pennsylvania disgraced comic Bill Cosby inches towards a trial. Like Ghomeshi, Cosby's wholesome image was dashed to pieces by a variety of sexual assault allegations.
Unlike Jian Ghomeshi, Bill Cosby has gotten some really bad legal advice. As much as Ghomeshi's trial showcased some good legal strategy, Cosby’s will highlight the opposite.
First, a quick summary of the allegations. In January of 2004, Bill Cosby made friends with Andrea Constand, a Canadian working at Temple University in Philadelphia. Cosby was big name at Temple.
One evening, Ms. Costand shared a drink with Mr. Cosby at his home. She was feeling stressed, so he gave her some pills to calm her anxieties.
According to Constand, the pills left her unable to move, at which point Cosby took advantage of her, touching her sexually and making her touch him.
Several hours later, Constand woke up with her clothes askew. As she left his house in the middle of the night, he stood at the door and gave her a muffin on her way out.
BILL COSBY PROCEEDS TO MAKE MATTERS WORSE
It’s after this (somewhat) disputed event that Cosby begins to bury himself in self-inflicted wounds.
To be fair, a lot of people make the same mistake that Cosby does here. He engages in a kind of damage control, reminiscent of Jian Ghomeshi’s ill-conceived Facebook post that triggered an avalanche of bad press and eventual criminal charges.
In Cosby's case, Andrea Costand left Philadelphia a few months after the event in question and went home to Canada. She eventually told her mother what happened to her and her mother telephoned Bill Cosby. This brings us to January of 2005.
Cosby started the telephone call by admitting to Ms. Constand’s mother that he had given her daughter prescription drugs. He promised that he would send her the prescription.
He admitted that he touched Constand’s breasts, her vagina, and put her hand on his penis. He apologized. He offered to pay for her therapy.
In this one conversation, Cosby admitted to almost all the facts needed to convict him of indecent assault.
Now agreed, this conversation could have been disputed - except that a few days later, Cosby confirmed the entire conversation to the police. More on that below.
Cosby and Constand’s mother ended up having a second conversation, in which he was evasive but offered to meet her somewhere to talk. He then orchestrated a third conversation with one of his representatives, who offered to fly the Constands down to Florida so they could talk. He also offered to pay for Constand to go to school.
CLASSIC, AFTER-THE-FACT CONDUCT
What we see here, as we look back on Cosby's after-the-fact conduct, are classic attempts at damage control. Unfortunately for him, the damage is all on himself. He isn't thinking about a possible trial.
During the Ghomeshi trial, we saw various complainants pursue Mr. Ghomeshi after he allegedly assaulted them. Although they told the police that they had never wanted to see him again, one complainant sent him a love-letter. Another engaged with him in sexual intimacy.
Some saw this as strange post-assault conduct. Others saw it as damaging to their credibility. And yet others commented that this "post-offence" conduct by the complainants was irrelevant.
Here, the conduct is on the other shoe, on Mr. Cosby. Perhaps her was trying to “normalize” the situation? Or perhaps he acted like a person who was trying to get Constand to be quiet.
These major, self-inflicted wounds kept coming.
THE POLICE GET INVOLVED & A CIVIL SUIT IS LAUNCHED
While Constand's mother spoke to Cosby, Constand herself had already talked to the Canadian police. They passed her complaint on down to Pennsylvania.
In late January of 2005, Bill Cosby spoke to the Montgomery County police, just north of Philadelphia, with his lawyer by his side.
One of the first thing Cosby did was confirm the nature of his conversation with Constand’s mother’s: the sexual contact, the drugs, the offer to bring her down to Florida, to pay for her daughter to go back to school.
Cosby then says that he provided Ms. Constand with Benedryl - a drug, he says, he would never take before performing because it made him go to sleep. After that, they had consensual, sexual contact.
From the Canadian perspective, this Law & Order type interview, where a lawyer allows their client to provide the police with self-damaging information that could be used in cross-examination, is beyond imaginable. A prosecutor can build their case quite easily with all of the admissions Cosby has made up until now.
But there’s more. Oh yes, there’s more.
Over the course of four days in 2005 and 2006, Cosby testified in examinations for discovery because of a civil suit brought by Andrea Constand - which he eventually would settle.
His testimony is painful to read.
He testified that when he first saw Ms. Constand, he became attracted to her and decided to befriend her to pursue that interest.
Remember, Bill Cosby is married. Now, wanting to cheat on your wife is not criminal, but it isn't exactly something you want to admit when you could face criminal charges on down the road.
Cosby admits that he gave Constand some drugs to relax her. He admits to the sexual contact.
Later on, he is asked about seven prescriptions he had for Quaaludes, a drug he never took nor did he intend to take, because they made him sleepy. He agreed that he got the drugs to give to “young women” that he wanted to have sex with.
Cosby said that believed Quaaludes to be the "drug of choice" by young people used to party. He wanted them “just in case”. He knew that it was illegal to give them to someone else.
Ouch, ouch, ouch.
HOW IT ALL ENDS: NOT GOOD FOR BILL
It's hard to foresee how all the after-the-fact conduct and the admissions will come back to haunt Mr. Cosby. Some of the evidence could get excluded for one reason or another.
But what he's done is give the prosecutor a treasure trove of statements and conduct to use at his trial, and use it they will.
All of this could have been prevented had Cosby had some proper legal advice once he knew he was being accused of something criminal by Andrea Constand's mother.
Also, Cosby should never have testified during his civil suit, not given what he had to say. He settled the case anyway. Why he had to inflict so much damage on himself is inconceivable.
In the last two months, Cosby has attempted to have his charges dismissed, due to a promise he says he received from the former district attorney in Montgomery County to close the books permanently on Constand's allegations. That attempt has failed badly.
This alleged promise, if it was given, was never reduced to writing. Even a non-lawyer knows that a promise like that is worth nothing if it wasn't put in ink.
Bill Cosby: lessons on what not to do in a criminal case.
The 20 page Criminal Complaint filed by Montgomery Police.
R. v. Rodgerson, 2015 SCC 38. A leading case from the Supreme Court on post-offence conduct.