We asked a veteran criminal defense lawyer about the now-infamous comedian's aggressive strategy.
Dozens of women have come forward with sexual assault allegations against Bill Cosby, but Andrea Constand is the only one to get the comedian criminally charged. Cosby faces three felony counts of aggravated indecent assault for allegedly drugging and assaulting the former Temple University basketball employee in his suburban Philadelphia home in 2004. The case was launched by Montgomery County Prosecutor Kevin Steele after Cosby's deposition in a 2005 civil action brought by Constand was unsealed this past summer. The original, decade-old suit concluded with an out-of-court settlement and confidentiality agreement, which Cosby's lawyers tried to argue precluded any criminal prosecution. But Steele, who made a campaign issue of Cosby's alleged crimes last fall, was determined to go forward, and a judge sided with the prosecutor early this month.
But even as Cosby's lawyers were petitioning to have the case thrown out, they filed a lawsuit alleging Constand violated the terms of the 2006 deal. The comedian's attorneys argue the woman and her mother breached the settlement by voluntarily cooperating in the criminal investigation; they're also going after Constand's lawyers for playing ball "despite being under no legal obligations to furnish her files voluntarily to the district attorney," as well as National Enquirer parent company American Media over the outlet's stories about the allegations.
Cosby's suit is ostensibly about recouping the initial payout. But with assets totaling approximately $350 million, it's money the man clearly doesn't need. Alongside the defamation of character suits he filed against several of his other accusers last year—Cosby's wife Camille was slated for a deposition in one of those cases Monday—this latest legal broadside is best understood as part of a multi-pronged offensive designed to quietly achieve what society did for decades: to keep Cosby's accusers silent.
We asked seasoned New York criminal defense attorney Isabelle Kirshner for her take on the former icon's aggressive legal strategy so far.
VICE: How does this kind of confidentiality agreement that Cosby's lawyer says blocked prosecution even get set up in the first place?
Isabelle Kirshner: It's not an enforceable thing to say that, "I won't bring criminal charges against you." That is against public policy. So if a prosecutor reaches out to you but says, "I know that you signed the agreement, but I want to talk to you or I'm gonna subpoena or I want you to cooperate with law enforcement," [the law] allows you to do that regardless of whether or not you have an agreement that says you won't.
Andrea Constand would be forced to repay Cosby for the settlement if his team wins. But this isn't really about money, right?
Whether she has [the money] or not is another issue altogether. My guess is that Mr. Cosby is not necessarily interested in getting the money back so much as making this an absolutely unpleasant process for her. I don't think getting back whatever money he's getting back from her is going to matter to him; he's spending more money on the lawyers he hired to get the money [than] I'm sure he paid her. He's got a lot of very heavy-duty lawyers representing him [legal analyst Monique Pressley and criminal lawyer Brian McMonagle], who I've known to be very aggressive. I think this is just a matter of trying to intimidate [Constand] and intimidate other victims from coming forward in the hopes that everybody will back off. The approach is more global in nature than this case.
How common is this kind of kitchen sink legal approach?
I'm unaware of that many cases where there's [been] so many [accusations], although quite frankly, most of them are outside the statute of limitations. I don't think he has that much criminal exposure, unless there's stuff out there that you and I don't know about. But I think it's unique to someone who is a celebrity and whose reputation is as important to them as the money. It's not a normal strategy, but most people can't afford to bankroll such a legal team. They're trying to stem the bleeding and discourage [others] from cooperating with the DA's office, because he's got a lot to lose, obviously.
The suit against Constand comes after Cosby filed defamation of character lawsuits against several of his accusers. Is the goal the same there—intimidation?
I don't know the specific allegations in those lawsuits, but the problem in defamation of character lawsuits is that truth is an absolute defense. Even if you say something really bad about somebody, if it turns out to be true, there's a defense to it.
[But] again, this is all part of an overall strategy for him to discourage people from coming forward and continuing to talk to the press. He's able to afford to undertake this strategy when most people can't.
This interview has been edited and condensed for clarity.
Follow Brian Josephs on Twitter.