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We Asked a Lawyer What's Next for Alleged Serial Rapist Bill Cosby

We called up an expert on celebrity trials, sex offenses, and defamation at the University of Southern California for his take on the formerly beloved comedian's legal woes and how they might play out.

Photo via Wikimedia Commons

On Wednesday, the California Supreme Court rejected a petition filed by Bill Cosby's lawyers to review—and possibly quash—a civil suit against the comedian for sexual misconduct. Filed by 56-year-old Judy Huth, the suit alleges that the once-beloved actor, author, stand-up comic and musician sexually assaulted her in 1974—when she was just 15—after bringing her to a party at the Playboy Mansion in Los Angeles. Huth was unable to press criminal charges against Cosby when she came forward with her story in December thanks to California's statutes of limitations. But thanks to more generous limitations for civil suits and the state high court's affirmation of her case's legitimacy, Huth's celebrity lawyer Gloria Allred should get to depose Cosby within 30 days.

The ruling came just weeks after United States District Judge Eduardo Robreno decided to honor a request by the Associated Press and unseal testimony court documents from a separate 2005-06 civil suit against Cosby. Filed by Andrea Constand, who accused Cosby of drugging and sexually abusing her in 2004, the case gathered testimony from 13 anonymous collaborating witnesses. Most dramatically, Cosby himself was deposed and admitted to procuring Quaaludes (back when they were still legal to prescribe), but not for his own use—instead, they were intended for the targets of his sexual advances. But the case vanished in 2006 after Constand accepted a settlement in exchange for putting a lid on most of the trial.

Still, the AP's findings were quickly followed by more extensive leaks: The deposition itself was dug up—albeit not published in its entirety—by the New York Times earlier this week.

There's technically no legal wrongdoing contained in Cosby's 2005 admissions, as the comedian weaves around or straight-up avoids questions about whether women knew he was giving them Quaaludes and whether they were, when on drugs, able to consent to sex. But it's safe to say the statements serve as a glaring indicator of dubious character and a pattern of sexual behavior that should help Cosby's many accusers (over 40 women have come forward with similar stories about him involving drugs and sexual assault, most of them over the last nine months) and hurt his chances in the various legal cases he's currently involved in.

Beyond Huth's suit—the only one directly seeking damages for sexual misconduct—Cosby faces two defamation cases in California and Massachusetts, claiming that he tarnished the reputations of accusers by denying their stories. He also faces a criminal investigation in Los Angeles related to a December claim by model Chloe Goins that he drugged and assaulted her in 2008 at the Playboy mansion. Huth's case is perhaps the most explosive right now, and has the most momentum, but all four are obviously problematic for Cosby.

To tease out what recent developments could mean down the line, I called up Jody David Armour. The Roy P. Crocker Professor of Law at the University of Southern California, Armour is an expert on celebrity trials, sex offenses, and defamation—all highly relevant in the Cosby saga. Here's his take on the future of America's former lovable role model.

VICE: Let's start with the 2005 deposition. What effect will that have on the new deposition Allred is set to conduct for her case and for the two defamation cases out there?
Jody David Armour: Oh, it's going to have a huge impact. It corroborates the claims of plaintiffs and those who allege that they've been victimized by Bill Cosby.

A large part of their essential claim is that he non-consensually drugged them to have sex with them. The [2005] deposition doesn't prove that he non-consensually gave women Quaaludes or any other drug as part of sex. But [it does] establish that he does mix sex and drugs and considers it a kind of acceptable and ordinary practice for him. It is powerfully corroborative of their essential claims that something like that may have gone on in their cases.

How about the criminal investigation?
We have two parallel tracks of claims going against Bill Cosby: one on the criminal side, one on the civil side. The criminal side has typically not been a route that any of the other alleged victims could pursue because of the statute of limitations on the alleged crimes in most jurisdictions. But 2008 is within the statute of limitations period for sexual assault criminal prosecutions in California. So that is the one case that has some criminal implications to it. That's reason the DAs of Los Angeles County are looking into it for a possible criminal charge.

This kind of revelation that came from these depositions will certainly affect most human decision-makers in a predictable way. It's going to make you even more suspicious of the person who you're investigating. Indirectly, it has certainly created more drive for the DA to take these charges seriously and to investigate them very thoroughly and to recognize that they'll be able to bring in some of the evidence from that deposition if this goes to trial as evidence that he was engaging in predatory behavior, using drugs and mixing them with sex.

It may never go to trial, but just pointing to this deposition and saying: If this [evidence] goes to trial, or we know that most of the people in the jury box have heard of this even if they don't bring it into the trial, you're going to look very bad in the eyes of the jury. You don't want that do you? So why don't we just plea bargain here? It really strengthens their plea-bargaining hand and may make it unnecessary to even go to trial, because he and his lawyers can see just how weak a position he'll be in at a criminal trial with this kind of evidence.

The deposition gives Allred a real template to work off of when she's deposing Cosby. What sort of questions is she empowered to ask that she might not have been before?
Oh, yes. She has the sworn deposition that he made in 2005. He has some statements that he cannot go back on. So she can say, simply, Mr. Cosby, are you in the habit and practice of mixing sex with young women with drugs, yes or no? And he has to say yes because he's already said that in his deposition.

As you put it, it is a template: She goes through the deposition and all the damning statements that he makes in that deposition that we're talking about now, all of those same damning remarks and admissions. She's just going to ask him [the same questions] again and get him on the record and then say: Let's go a little further. Have you given these drugs to women without their consent or awareness or knowledge? I can't imagine that he will say anything other than no to that. He will say that he gave it to them like you offer wine or whiskey. You're giving them something to alter their mood, but not doing it in a surreptitious way.

Can she ask him to account for each individual Quaalude pill that he had in his possession as a powerful act of corroboration, even if he doesn't admit to anything?
Absolutely! She is, in these depositions, speaking not only to Cosby, but to an imaginary jury out there, a familiar court of public opinion right now.

One thing we teach in law school is the art of discourse, the art of rhetoric—persuasive discourse. It's powerful rhetoric to be able to march through, identify, and discuss each separate Quaalude, like you're talking about each separate bullet that he put into a chamber of a revolver. Yes, that has rhetorical power, and that's going to be a big part of the deposition process going forward. She recognizes it, and his lawyers recognize it, too.

Is your sense this is more likely to end in litigation or a settlement?
What complicates it, here's the wild card: Is there going to be a criminal prosecution?

It's one thing to talk to someone who's worth hundreds of millions of dollars about losing millions of dollars, even hundreds of millions of dollars. It's another thing to talk about a 77-, 78-year-old man sitting in a jail cell. When he's looking at that possibility, he may become a lot more reluctant to say things that may be incriminating.

Right now, he has to recognize that anything he says under oath as part of these civil proceedings could have criminal implications, in the way of self-incrimination. How feisty he remains, if you will, is going to depend on what happens with this criminal case. Are charges going to be filed? Is he going to have to defend both a civil and a criminal case simultaneously? So he's looking at both a loss of a lot of money and a loss of liberty simultaneously—that's like a double barrel of legal actions aimed on him.

Who knows what kind of impact that could have on his decision making to fight the civil claims in a certain way or not?

The accusers might not accept a settlement either, right? How likely is this to actually play out in court?
Let's say the criminal case doesn't go forward and there's no criminal prosecution. [Then] the defamation claims are the only ways that the rape charges can actually have a day in court. Even though the claim will be "defamation" in court, what will really be on trial is if Bill Cosby raped women, drugging them and then having sex. There may be something very important about that claim having its day in court to these plaintiffs on the one hand.

On the other [hand], a big settlement carries its own implied admission at this point. He's already suffering a lot of condemnation from public opinion and a lot of sponsorship [implications], etc. They might want to say, I've had a lot of pain and suffering that I've gone through because of his actions and I need to work towards healing and being better. This compensation will help me to start the healing and move on.

And by the way, any settlement is going to be huge because it's going to have to cover what they're going to be going for marginally in the trial, which is not just compensatory damages, but punitive, exemplary, punishment damages. A jury could give someone $1 million or $2 million in compensatory damages and then slam them with $100 million in punitive damages. The settlement would have to be large to account for that possibility. But if they got that large a settlement, they might say: Maybe I don't gain a lot more if it runs in court to trial.

I could see both perspectives and that's something they'd have to discuss with their lawyers. I don't know Allred, what her opinion on these matters would be. That's going to be important, because she's going to be counseling her clients and advising them to go one way or another. Her perspective on whether it's better to have a day in court on all these issues or settle is going to have a big impact on what actually happens.

As we've said, nothing in the 2005 deposition or the cases thus far is slam-dunk evidence. Some of this will come down to he-said-she-said. So if this does go to court, what would it take for Allred or the other lawyers to win their cases?
I teach law school, so I'm big on the rules. I do believe rules matter and laws matter, so I'm going to nod in that direction as I tell you what practicing attorneys say.

In the Bronx they used to say in the DA's office: "Charge him with anything; prove he's a son of a bitch." Once you prove to a jury's satisfaction that a particular defendant is a wicked individual—is just an SOB—then it's a lot easier to convince them of any particular facts that you're trying to establish. And I've heard a tort attorney say the same thing: He used to say, "When I was suing a corporation, the first thing I'd convince that jury of is that that corporation is wicked, evil. Then I'd start talking about causation."

Gloria Allred is going to go into trial—if this goes to trial,—with a defendant who many people view already as perhaps depraved, at least morally deficient. It's much easier to prove anything else you have to prove in that case once you have fact-finders convinced of that.

Especially after the California Supreme Court denied his attempts to get Allred's case reviewed, it seems like Cosby's running out of legal tactics. Does he have any other recourse, or is he just in a litigate-or-settle position?
No question, he has to litigate or settle.

He's also got to try to, at the same time, reclaim his tattered public image, as I understand some people in his camp are trying to do now. Repairing that public image isn't just going to deal with any future commercial viability he might have, which I think is nil, zip, zero. It may also have an impact on affecting any perspective jurors if he can get a less dastardly image of himself in front of the public. Maybe some of the jurors in the jury box won't go in with the presumption that he's an SOB and therefore probably guilty of whatever he's being charged with.

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