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When his sexual assault conviction was overturned by Pennsylvania’s highest court, Bill Cosby theoretically became constrained in his ability to invoke his Fifth Amendment right not to incriminate himself. Attorneys for Judy Huth, who sued in 2014 claiming the comedian sexually assaulted her in 1974 at the Playboy Mansion, moved to depose Cosby after the reversal because there was no longer any active criminal investigation.
L.A. County Superior Court Judge Craig Karlan found on Friday that Cosby can continue to refuse answering questions that may land him in legal trouble, pointing to the possibility of being prosecuted again if new information is uncovered from his testimony in this case.
“I don’t think that by virtue of the fact that the Los Angeles Police Department said the investigation is closed or the District Attorney’s Office said we’re not prosecuting at this time, that he’s clear,” Karlan said. “If new evidence came up, nothing prohibits the police department or District Attorney from opening a new investigation. There are tons of cases that have done that.”
After all, that’s what happened in the case that put Cosby in prison for three years. In 2018 he was convicted of the aggravated indecent assault of Andrea Constand — but the Pennsylvania Supreme Court in June overturned the conviction because of a non-prosecution agreement with a previous Montgomery County D.A. In that case, testimony from Cosby in a civil trial admitting that he drugged women was used to charge him years later. Pennsylvania prosecutors are currently asking the U.S. Supreme Court to review the decision that overturned Cosby’s conviction.
The Fifth Amendment dispute in the lawsuit brought by Huth swung on whether Cosby still has a reasonable fear of incriminating himself if he testifies.
During a Friday morning hearing, defense attorney Jennifer Bonjean argued there “can never be an imaginary or fantastical fear of prosecution” considering what happened in the “disastrous Montgomery prosecution.” She emphasized that Huth’s attorneys want to fish for anything that could expose her client to any liability.
“They want to ask questions like ‘Have you ever sexually assaulted anyone, anywhere in the last 48 years of your life?'” Bonjean said. “That’s the evidence they want to develop. It’s not even about the Huth matter.”
While there are currently no active criminal cases against Cosby for alleged sexual assault, prosecutors can choose to bring them in the future as long as the window to charge him is still open. Numerous states have abolished or altered the statute of limitations for certain sex crimes, like California did in 2020, to give victims of childhood sexual assault more time to sue.
Federal prosecutors could also charge Cosby under the theory that he led a so-called criminal enterprise by directing a scheme to assault women. The government brought its case against R. Kelly alleging violations of federal anti-racketeering laws.
“The Eastern District of New York in particular has been very aggressive about bringing claims against celebrities under a series of RICO violations pleading around statute of limitations by charging people with predicate acts that date back decades,” Bonjean said.
Huth’s attorney John West countered that Cosby shouldn’t get to enjoy a “lifetime pass” of invoking the Fifth Amendment and said there are no active investigations or cases involving Cosby.
“But the fact that a prosecutor declines to prosecute a case doesn’t mean that a newly-elected prosecutor will take the same view,” Karlan responded. “That’s what happened in Pennsylvania. That could happen here.”
West shot back that the “fear of prosecution has to be reasonable,” to which the judge said that prosecutors will re-evaluate charging Cosby if more information is uncovered.
Up next, Karlan will consider at a Feb. 28 hearing whether Huth must undergo a mental health evaluation. Trial is set to start on May 9.
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