Bill Cosby Faces a ‘Huge Problem’ in Criminal Case

An onslaught of media coverage and a multi-front legal battle pose big hurdles for comedian in his assault case, legal experts say

Bill Cosby on December 30, 2015

Bill Cosby‘s ongoing legal saga took a dramatic turn when Kevin Steele, district attorney-elect and current first assistant DA for Montgomery County, Pennsylvania, charged the besieged comedian with felony assault on Wednesday stemming from an alleged 2004 incident.

The felony count marks the first criminal charge against Cosby, following dozens of accusations and multiple civil suits against the comedian. And as one legal expert told TheWrap, the publicity surrounding the accusations presents “a huge problem” for the comedian as his saga moves into the arena of criminal law.

“Before he walks into the courtroom, number one, virtually everyone knows who he is, but two, there’s been such media saturation of the allegations against him by so many individuals over such a period of time, I think the frequency as well as the intensity of the coverage presents him with a huge problem that is very difficult to overcome,” Paul DerOhannesian, an attorney and author of “Sexual Assault Trials,” told TheWrap. “He is not in the same position as a normal defendant.”

Bill Cosby
Getty Images

While jurors in a trial would be instructed to disregard the publicity surrounding Cosby and focus on the facts of the criminal case, DerOhannesian is skeptical that they could do so, given the massive media coverage the accusations have received.

“We’d like to believe that jurors will follow instructions,” he noted, but added, “I’m not convinced that, in the real world, you can separate the cream and coffee.”

Beyond potential juror bias, DerOhannesian noted it’s possible that past accusations could be introduced in the criminal case, which stems from the alleged 2004 assault of former Temple University employee Andrea Constand.

“For example, the idea that he had a unique way of gaining access to women by drugging them” could arguably be admissible as a specific method of operation, DerOhannesian said. (Constand claims that Cosby drugged and violated her at his home.) While the law “is not really clear and bright” on which other allegations could be admissible, and the issue of what is or is not admissible would ultimately be decided by a judge, DerOhannesian said that the introduction of other accusations “will be a huge legal question on both sides of the case.”

And there appears to be little doubt that Cosby’s case will go to trial.

“The prosecutor can’t bring this charge at this point with such a high-profile individual without wanting or expecting some type of conviction in this case,” DerOhannesian noted.

Bill Cosby mugshot: William H. Cosby poses for a mugshot photo during his arraignment December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh and charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released.after posting $100,000, the required 10 percent of bail. (Photo by Montgomery County District Attorney's Office via Getty Images
Elkins Park, Montgomery County District Attorney’s office

Cosby, too, has much at stake — his reputation and an onslaught of civil cases — making it unlikely he will agree to any type of plea deal.

“I don’t think Mr. Cosby will plead guilty to anything and I don’t think they will offer him an acceptable resolution to the case,” criminal defense attorney Thomas Mesereau, who represented Michael Jackson during the singer’s 2005 child molestation trial, told TheWrap. “I don’t think he wants to plead guilty to anything.”

The multi-pronged nature of Cosby’s legal battle will also complicate things for the comedian and his legal team, particularly if he’s found guilty. DerOhannesian and Mesereau noted that a guilty verdict could have dire results for Cosby in the civil cases he faces.

“If he’s convicted, it will make a civil liability much easier for the plaintiffs,” Mesereau said.

“He is going to see that it is very difficult to fight a multi-front war,” DerOhannesian added.

Because of that, Cosby’s lawyers will likely try to have the civil cases put on hold pending the result of the criminal case, arguing, for instance, that he could be forced to answer questions in the civil cases that could be used against him in the criminal case. However,  DerOhannesian said, the decision to stay the civil cases would be up to the judges presiding over them, and it’s far from certain that they would decide in Cosby’s favor.

That’s just one question mark hovering over a legal entanglement that seems to have no end of complexities, according to DerOhannesian.

“The criminal case has really upped the ante on many legal issues and questions,” DerOhannesian said. “There were plenty before, but I think the criminal case complicates some of the other civil cases also. It certainly puts a lot more at stake.”

Getty Images

As for the specific criminal case involving Constand, who sued Cosby but ultimately settled with him, the comedian’s legal team will likely go after her aggressively.

“I think the defense is going to say that she was after money and she took money,” Mesereau said, adding that Cosby’s lawyers “have no choice” but to go on the attack against Constand.

“She’s the accuser,” Mesereau explained. “She’s trying to get him convicted of a serious felony, which will send him to prison, which will make him register as a sex offender probably for the rest of his life. You have to go after her tooth and nail.”