After Bill Cosby was convicted last week of drugging and sexually assaulting a young Temple athletics employee, jurors spoke out about what evidence led them to convict. Some said they were convinced by Cosby’s own deposition for a decade-old lawsuit he settled with Constand for $3.5 million, in which he admitted giving her Benadryl and wine in his Cheltenham mansion, then molesting her.
There’s just one problem: that piece of evidence could be considered a violation of Cosby’s Fifth Amendment right to not self-incriminate, which could be a significant issue on appeal, since he testified under a non-official, apparently verbal non-prosecution agreement with former Montco DA Bruce Castor.
But realistically, only 7 to 9 percent of appeals result in substantial change, said Rutgers-Camden criminal justice professor Ross Allen. Since that deposition was ordered released to the Associated Press by a federal judge, it can’t be magically re-sealed.
“If these were untrue allegations, he would have filed 80 lawsuits against his accusers,” Allen said. “The only defense to defamation is the truth.”
But ultimately, Cosby is unlikely to face prison time, Allen predicted.
“I doubt he’s going to see the inside of a legitimate prison,” Allen said, noting that Cosby would require extensive protection if he were in custody. “If he sees prison, it’s going to be some sort of 364 days, under a year, non-violent prison, maybe something like Martha Stewart was in.”
Cosby, 80, is legally blind and is so well-known Allen is not sure he needs to be incarcerated.
“What’s the cost benefit analysis to locking him up? Is he a danger to society? You’re going to have to spend a lot of time to protect him from other offenders. … There’s a good chance the judge is going to let him stay out while the appeals process is underway, that’s two or three years. At what point do they say the biggest punishment he’ll ever face is the loss of his legacy?”
Additionally, Cosby recently lost a daughter, in addition to the murder of his son some 20 years ago.
“A lot of people think he’s paid enough, not through the system, but through his tragedies,” Allen said.
A bigger question is whether Cosby got a fair trial, Allen asked.
“The whole situation with Constand being the person who is now essentially the face of this, with the addition of the #MeToo movement, potentially could have tainted the jury,” he said. “He got what I consider lucky on the first trial. … Getting the second trial is what bothers a lot of people. I thought he would plead out after the mistrial, and they said they would retry.”
The #MeToo movement didn’t just bring bigger pressure on Cosby for being accused of sexual misconduct, but also may have made jurors see his lawyers’ attacks on the credibility of accusers less favorably.
“His attorneys, instead of defending him, they were bashing the accusers,” he said. “People have known about Cosby’s alleged conduct for 40 years.”