Can Bill Cosby Get A Fair Trial?

Bill Cosby

The eleventh hour indictment of Bill Cosby for aggravated sexual assault on Andrea Constand resulted in those baying for his blood rejoicing publicly, Gloria Allred in particular. While it is well to always remember that the real target of this grubby little conspiracy is not Cosby himself but statutes of limitations for sexual offences throughout the United States, the conspirators may be rejoicing too soon. Assuming Cosby doesn’t die at some point prior to his standing trial, and assuming he is found fit to do so, there are a number of obstacles to overcome, mostly of Miss Allred and company’s making.

In 1995, a judge halted the trial of Geoffrey Knights at Harrow Crown Court due to what he called “unfair, outrageous, and oppressive” reporting. Mr Knights was charged with grievous bodily harm with intent, which in the UK can be just as serious as aggravated rape.

A police investigation into claims of “improper collusion” between journalists and some witnesses in the case was later announced by the Solicitor General. US law is different from UK law, in particular police and prosecutors are not shy about releasing large tranches of material to the public pre-trial, much of which in the UK would not be disclosed even after trial. It is not that different though, and there are still issues relating to publicity. While it is to be hoped the mainstream media will now be reined in, there is of course no stopping social media, but can an impartial jury be found? Let’s look at some case law from a lay perspective; doubtless Cosby’s legal team have long been casting a professional eye over it.

In Marshall v United States, (1959), a retrial was ordered because extremely prejudicial press reports had come to the attention of the jury. The judge questioned the jurors about this individually, the trial went ahead, and Marshall was convicted. The US Supreme Court did not agree.

In the capital murder case Irvin v Dowd, (1961), prejudicial media coverage made it difficult to find a neutral venue. Jury selection lasted four weeks, and there was a panel of no fewer than 430 potential jurors. Unlike Cosby, Irvin was a serial killer, but like Cosby he was said to have confessed – to wit, Cosby’s admission re Quaaludes. These two cases alone make it difficult to see how Cosby could ever get a fair trial because every sentient human being in the United States over the age of about 12 knows Cosby is a serial rapist who by his own admission drugged and violated women. How do they know that? Well, the media has told them, a famous lawyer – Gloria Allred – has told them. Cosby himself has told them if you rely on some media reports, as most people do. Heck, there is even a dedicated Cosby Rape Dot Org website. How could any jury be expected to get past all that?

If there is any case similar to the forthcoming Cosby trial that needs to be considered it is Sheppard v Maxwell, (1966), a notorious murder trial with which many American crime buffs will be familiar. In December 1954, Dr Sam Sheppard was convicted of the murder of his pregnant wife, who was bludgeoned to death earlier that year. Like Cosby, Sheppard was obviously guilty, although he never made any kind of confession. There are many other cases that could be applicable here from the prejudicial publicity angle alone, but this should be enough.

Let us assume that the State manages to convince the court that Cosby can indeed receive a fair trial, and it goes ahead, what is likely to happen? We know already the strength of the case against him thanks to the information released by the authorities. However, any objective person who reads this documentation will realise it presents as many problems for the prosecution as for the defense. Cosby had previously come on to Constand twice, in no uncertain terms, and both times she told him she was not interested, yet she went back a third time and dined with him alone? There is a saying that there is a fish in every poker game, if you look around the table and can’t see him, there is a good reason for that. Likewise, if a woman dines alone with a man, don’t ask what is the dish, because the dish is you, even if he is 37 years your senior, unattractive, has come on to you twice before unsuccessfully, and you are a lesbian.

Lachele Covington, who is even younger than Constand, dined with Cosby once, and when he tried it on with her, she left promptly never to return, although she also over-reacted by filing a police report. Constand didn’t file a police report, she didn’t even file one after their third sexual encounter. Not until after meeting Cosby again and telling her mother a year later.

Regarding her alleged drugging, one of Cosby’s supporters – a man with impressive academic credentials – has suggested that they are both wrong about what happened, but it is quite possible that Cosby did give her Benadryl as he claimed. Here is what the people who know about these things say about Benadryl:

“Use caution when driving, operating machinery, or performing other hazardous activities. Benadryl may cause dizziness or drowsiness. If you experience dizziness or drowsiness, avoid these activities. Use alcohol cautiously. Alcohol may increase drowsiness and dizziness while taking Benadryl. ”

All drugs have side-effects, and these manifest differently in different people; Benadryl can also cause nightmares, even hallucinations, so there is really no need to look any further in Constand’s case. Bear in mind too that she took these pills voluntarily and drank wine voluntarily. No does indeed mean no, but not if the victim says yes!

It is unquestionably this incident that has led to what one of Cosby’s most vocal supporters calls the Demon Cosby myth. We can only speculate as to how it grew, but it is not impossible that Constand heard about his Spanish fly routine, put two and two together, and made five.

Leaving that aside, did Constand not bite the bullet and give in to Cosby hoping perhaps that if she succumbed to his casting couch routine he would fix her up with the part of Red Sonja in a remake of Conan The Barbarian? These will all be issues for the jury – if the case gets that far, but Constand would be far from the first or the last woman to get drunk, have sex, and then cry rape the morning or in her case the year after.

In the UK it has been dangerous for some time for a man to take a woman to bed after any amount of drink. In September 2000, post-graduate student Nicholas Buoy was cleared of raping a woman at a drunken party. He said he was too drunk to remember what happened – so clearly the Earth didn’t move for him – but the forensic evidence indicated that no sex had taken place, which begs the question why was he even charged?

In October 2014, Karim Tshibangu was cleared of rape. He went to bed with a woman while both were under the influence of drink, and ended up being accused of violating her.

In the current case, it would be enough for the defense to show that when Cosby laid hands on Constand he did so taking her lack of resistance as having at last succumbed to his doubtful charms rather than to some sort of paralysis. It is also noteworthy that as far as sexual assault victims go, the women who have suffered least make the most noise, compare for example the hysteria generated by many of these so-called Cosby survivors with the Cleveland captives, and you will realise this. Likewise, if Constand were a level-headed human being she would not have reacted so hysterically a year after the event, rather she would have gone back the next day and called him out in front of his wife, or even considering her athletic prowess and his age, belted him one.

Now assuming the trial goes ahead, what else is the State liable to do? It will seek to adduce other Cosby survivors to show a pattern. As has already been made clear, there is no way Cosby will be able to avoid this, whether or not any of them is called to testify, they will all be there in the courtroom and more importantly in the jury room. Suppose though that Cosby’s lawyers really want to take the battle to the prosecution, what is to stop them subpoenaing a few of these women to show not a pattern of offending behaviour but a pattern of lying? They could put Joan Tarshis on the stand to explain how she was violated by Cosby shortly before communicating telepathically with aliens. Or Janice Dickinson to explain how she couldn’t remember what she was doing the year before she was allegedly raped by Cosby because she was already so drugged up on alcohol and Quaaludes. Or PJ Masten to explain how Cosby is the second man she has accused of sexual assault, and how the jury didn’t believe her last time. Or Chelan Lasha to explain her remarkable transformation from convicted false reporter and twice convicted prostitute to University of Nevada, Las Vegas alumnus and dietician. Who says courtrooms are dull places? One final point, our aforementioned Cosby fan points to his long track record of philanthropy and infers that this means he could not have raped Constand or any woman, that he is simply a nice guy who has been falsely maligned. This argument is fallacious, in the first place, some of history’s greatest tyrants have been nice guys in their personal lives. Heck, even Hitler remembered his boyhood Jewish doctor, and no one ever called Stalin uncultured. In the second place, what does a man do once he has acquired enormous wealth? Read up on Maslow’s hierarchy of needs, Jay.

Whatever the outcome of this trial including whether or not it goes ahead, Cosby’s reputation has already been totally trashed, and rightly so, because he is an acknowledged serial adulterer, and as Judge Eduardo Robreno said: “The stark contrast between Bill Cosby, the public moralist, and Bill Cosby, the subject of serious allegations concerning improper (and perhaps criminal) conduct, is a matter to which the AP — and by extension the public — has a significant interest.”

If though it does go ahead and he is acquitted, Cosby will have one person to thank above all, Gloria Allred, because more than any other woman she has managed to transform what is at the end of the day an allegation of serious sexual assault from a felony into a media circus.

This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of

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Alexander Baron

  • DukeLax

    I believe that State law enforcement have soiled up The American legal system with so many of these “federal pork bloating triangles” and “manufactured statistics Alliances” for federal dollars…….that there is no way Mr Cosby is going to get an un-prejudiced jury.