Bill Cosby's Conviction May Change Defense Tactics in #MeToo Era

"Certainly Harvey Weinstein would have to take a long hard look at this," says criminal defense attorney Roy Black.
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Bill Cosby (center)

Bill Cosby's criminal conviction for aggravated indecent assault is the result of an extremely unique set of circumstances — involving a previously sealed civil deposition, testimony from other accusers and an alleged 2005 agreement to not prosecute that was ignored by the sitting District Attorney — so it's unlikely to serve as a crystal ball as to how exactly future sexual assault cases against high-profile defendants will play out.

However, as what many are describing as the first trial in the #MeToo era, it could very well impact defense strategies of others accused of assault and harassment and provide some insight into how changing cultural perspectives are affecting the courtroom.

Criminal defense attorney Roy Black, whose clients have included Justin Bieber and Rush Limbaugh, says it's clear why the first jury to weigh whether Cosby was guilty of drugging and assaulting Andrea Constand in 2004 wasn't convinced beyond a reasonable doubt and the second one was.

In the retrial, five women who accuse Cosby of assault were allowed to testify as witnesses of prior "bad acts" that weren't directly connected to the facts in Constand's case — a decision Black says was entirely discretionary and for which he can see no legal reason except "to be politically correct and to ensure a conviction."

Black says that primes this case for appeal. He attributes the decision to a change in the rules regarding admissibility of evidence and social pressure judges are feeling from the public. 

"The rules have been changed to allow prosecutors to present other accusers besides those that are the basis of the charge," he says. "You’re now on trial for your character, not what you’re charged with."

Former federal prosecutor Priya Sopori says she thinks this trial provides some insight into how juries will now view cases against high-profile men. 

"The #MeToo movement has indelibly influenced our views of assault and harassment," she says. "You can sequester a jury from the media, and from television, but you can't sequester them from their own minds."

The first Cosby trial was months before Harvey Weinstein's public downfall and the beginning of the reckoning. At that time, Sopori believes it was harder for people to reconcile the public persona of "America's Dad" with the accusations involving his private behavior — and it was easier for them to judge Constand for settling a civil suit instead of pursuing charges more than a decade ago.

While Black isn't convinced the #MeToo movement affected the jury's verdict directly, he does believe it impacted the judge's decision to allow the additional testimony. "I think our criminal justice system generally does a pretty good job giving people a fair trial, but an individual judge can make a huge difference in your case just based on the admissibility of evidence," he says. "Judges are human beings and they are influenced by the culture and what’s happening."

Black also says this will likely embolden prosecutors to file charges in cases they wouldn't have otherwise. 

"You can take a very weak accusation and substantially strengthen it if you can find other people to make the same or similar accusations," says Black. "I would imagine there are a lot of famous men who are very nervous at the outcome of Cosby’s case. Certainly Harvey Weinstein would have to take a long hard look at this."

Richard Klein, a criminal law professor at the Touro Law Center, agrees that this conviction will encourage prosecutors to pursue more sexual assault cases. 

"If I were a prosecutor, the climate today in this country is such that I feel I’m going to be able to fairly easily get a conviction," says Klein, adding that in this case a psychologist who testified about why assault victims sometimes change their testimony was also key. "I think prosecutors were bothered by those inconsistencies and might have thought, 'We’ll never get a conviction because the alleged victim's story has changed.' Now they realize they can call an expert."

Klein insists fighting such testimony from experts and that of bad acts witnesses will be vital to defending these kinds of cases moving forward. 

Cosby didn't testify during his trial, but the unsealed testimony from Constand's civil suit was presented. In it, he admitted giving women drugs for the purpose of having sex. At the time, the comedian decided not to invoke his Fifth Amendment right against self-incrimination because he believed he had been assured by then-Montgomery County District Attorney Bruce Castor that he wouldn't be prosecuted. Cosby later paid $3.4 million to settle the suit. 

Sopori says the situation could make those accused of sexual assault less likely to settle or give any testimony in civil litigation. 

"What has the $3.4 million bought you? It didn’t buy you silence. It didn’t buy you out of a criminal prosecution," she says. "People who represent defendants in these types of civil suits are going to have to ask themselves, 'What am I willing to put on the record knowing that this testimony is going to come back and haunt me?'"