(In my prior post, I discussed the evidence against Bill Cosby in his case, the reason despite 50 or so claims of rape he could only be charged in this single criminal case, and the weakness of the state’s case.)
Prior Bad Act Evidence
The prosecutor surely knows that his case is weak – which is why he will desperately try to get into evidence as many of the other 50 or so alleged victims who claim they were sexually assaulted by Cosby in the same manner. And this is where the case will be won or lost: should the judge permit prior evidence of similar bad acts – accusers who will testify that they were also invited to Cosby’s home under the cloak of his offer of being a mentor and then unwittingly drugged – the accuser in the criminal case will have her credibility massively bolstered. However, this will cause a circus inside that courtroom as it will be the tail (the uncharged alleged criminal acts) which wags the dog (the sole criminal charge) and there will be numerous trials within this trial as each accuser’s story and her background becoming its own main event. It is for this reason — that the “probative value of the evidence outweighs its potential for unfair prejudice” (Pa. R.E. 404(b)(2)) — that the Cosby trial judge can decide to bar this additional evidence. Frankly, it is a tossup as to what the judge will do in the case: he may even allow just a few of the prior rape allegations into evidence in an effort to stave off public pressure and split the proverbial baby in half. Just a few admitted prior allegations of rape may be enough to sink Cosby.
Cosby’s Trial Strategy
Bill Cosby has already made the decision to hire an African-American woman as his trial attorney. This wasn’t done without serious thought: he picked a female lawyer because he doesn’t want the jury to see him at the defense table with a male attorney seemingly ganging up with him to bash the female alleged victim. In addition, a rapist is someone who treats women as inferiors – someone who trusts a female attorney with his life does not think women are inferior in any capacity. That his attorney is African-American was also a pointed decision: he wants to show he is true to his lifelong efforts on behalf of and his belief in the empowerment of the African-Americans — by actually hiring such a lawyer.
If the trial evidence is limited to just the one alleged victim’s story charged in the criminal complaint, Cosby’s lawyer will look to torpedo her credibility by looking into her psychological history, history of criminal and civil litigations (if any), employment history, financial and credit history, friends and former boyfriends – anything which could reveal the ability to impeach the complainant’s credibility. I have gone as far as speaking to a witness’s former spouse and gotten my hands on deposition testimony in divorce proceedings (which always seem to allow for the possibility of perjury). Bottom line: no stone should be left unturned by a top criminal attorney while defending a client who can afford the best representation.
The case against Bill Cosby could not be much weaker: a he said/she said affair with a “victim” who seemingly had no problem putting herself into situations wherein she would be alone with Cosby even after he had committed unwanted sexual advances. The prosecutor would not be staking his career on such a case, however, unless he felt very certain the trial judge would allow him to admit evidence of numerous Cosby prior bad acts of sexual assault which contained a similar modus operandi: the cultivating of younger women through promise of being a mentor, getting them alone and then unwittingly drugging them prior to sexually assaulting them. The prosecutor had best be right in his guess of what the trial judge will do on this crucial evidentiary ruling because if the case focuses solely on the complaint of the one victim as charged in the criminal complaint, Cosby’s attorney should be able to get an acquittal.