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A week ago, Bill Cosby walked into the Montgomery County courthouse in Pennsylvania to begin his trial for sexual assault. The 79-year-old comedian is accused of drugging and sexually assaulting Andrea Constand, a former Temple University employee.
If convicted, Cosby is facing up to 30 years in prison.
The prosecution took five days to make its case, calling 12 witnesses to the stand, including Constand. She testified that Cosby, a notable Temple alumnus, offered to mentor her but instead took advantage of her at his home just outside Pennsylvania in 2004.
She alleges that Cosby gave her three pills which he claimed were herbal supplements. "Put them down, they're your friends. They'll take the edge off," Cosby told Constand, according to Constand’s testimony. "I said, 'I trust you.' I took the pills and I swallowed the pills down."
Constand claims that Cosby waited for the drugs to take effect and then placed her on a couch and sexually assaulted her.
The defense, on the other hand, took less than a day to make its case: It called just one witness to the stand. It lasted six minutes.
The Washington Post called the defense “startlingly brief.” The New York Post said Cosby’s lawyer “all but threw in the towel.”
Does the brief defense signal anything substantive about the quality of Cosby’s case? How unusual is a move like this? What tactical or strategic goals might it serve? Is it as simple as Cosby’s legal team being unwilling to put him on the stand, or does it mean they don’t think the prosecution has proved its case?
To answer these questions, I reached out to Diane Marie Amann, a professor of criminal and constitutional law at the University of Georgia.
Here’s what she told me.
Sean Illing
How unusual is it for the defense to rest so quickly in a criminal case like this?
Diane Marie Amann
When the defense rests abruptly, that’s a sign either that the prosecution case is weak or that putting on a defense case would only make things worse. Typically, it’s a little of both.
Sean Illing
Is there an obvious strategic or tactical reason why a defense lawyer would take this approach?
Diane Marie Amann
The prosecution has the burden of proving all charges beyond a reasonable doubt, of course, and so if jurors have seemed skeptical about the prosecution’s witnesses or other evidence, the defense well might choose simply to reinforce that skepticism through closing argument.
Sean Illing
Is there another reason why Cosby’s lawyer might have no choice but to rest in this way?
Diane Marie Amann
Sometimes the defense has little choice but to rest. That’s because when a defendant testifies that the charged conduct didn’t occur, he opens the door for prosecution rebuttal evidence. This could include what are called bad-character witnesses ready to testify that the defendant committed similar bad acts on other occasions.
Sean Illing
Can we or should we infer anything about the quality of Cosby’s defense from this?
Diane Marie Amann
News media have reported over the years both that the defendant admitted obtaining drugs and that the chief prosecution witness is not the only woman who's accused him of criminal behavior. Assuming those allegations are true, it was wise for defense counsel to rest quickly.
Sean Illing
If you’re Cosby’s lawyer and you’re 100 percent confident in your case, is this a wise strategy?
Diane Marie Amann
Putting in testimony or other evidence denying the prosecution's case would have opened the door to this other evidence. It's hard to imagine a scenario in which jurors would have felt more favorable to the defendant after hearing such evidence than if they did not hear it at all.
Sean Illing
I think a lot of people are interpreting this as pointing toward Cosby's likely guilt, but you seem to be cautioning against that interpretation.
Diane Marie Amann
Yes. Given what has been reported, it seems like a wise decision by defense counsel. And again, in run of the mill criminal cases, it is not at all unusual for the defense to concentrate on attacking the prosecution's case through cross-examination of prosecution witnesses, rather than attempting to defend itself by calling its own witnesses.
