Editor’s Note: Paul Callan is a CNN legal analyst, a former homicide prosecutor and media law professor. He is “of counsel” to two law firms: Edelman & Edelman PC and Callan, Koster, Brady & Nagler LLP. The opinions expressed in this commentary are his.
Paul Callan: Bill Cosby's team had to change its approach, as it could no longer hide behind documents, courtroom doors and silence
A possible civil trial between Cosby and accuser Judith Huth could be dramatic, he says
The unprecedented publication Monday of the photographs and names of 35 women on the cover of New York Magazine who are alleging to be the victims of Bill Cosby has shattered a longtime media tradition of shielding the identity of alleged victims of sexual violence and abuse. (In this case, the victims apparently cooperated and were comfortable with being identified.)
It will also shatter the Cosby defense’s strategy of largely fighting the numerous allegations against him behind closed courtroom doors (with an occasional assist from Cosby supporters asserting that it amounts to an unconscionable shakedown of the 78-year-old entertainer by women who waited decades to make their claims).
Cosby’s legal situation seems to be getting exponentially worse, as the number of women claiming he sexually abused them now could fill a school bus. The number of accusers is now reportedly more than 40 women, according to various media accounts.
Many of these women are sharing remarkably similar stories of Cosby subjecting them to unwanted sexual contact through the use of drugs, alcohol and promises of success in show business.
Until recently, Cosby’s legal team had pursued a tactic of limiting the famed comedian and actor’s public denials of improper conduct to formal documents filed in court, rather than television appearances.
The team probably adopted the strategy with the belief that because the statute of limitations (for both civil and criminal action) had expired in almost all of the potential cases, the accusations would fade and be forgotten.
Public appearances on television and radio – as well as print and Internet statements – were also probably avoided in the past to prevent defamation countersuits against Cosby representatives in the event that they called the women liars.
In addition, Cosby’s attorneys probably feared being subjected to difficult questions regarding at least one old case (with Andrea Constand) that was settled and then sealed pursuant to a confidentiality order.
The Cosby team’s legal strategy of silence – an expression of lawyer distrust of the media and the legal philosophy of fighting battles in courtrooms rather than in unpredictable media forums – was jettisoned last week with the appearance of a polished, highly articulate attorney speaking for the Cosby defense team.
Monique Pressley, a former senior assistant attorney general in Washington, made the network television rounds recently, speaking passionately – and some might say persuasively – on Cosby’s behalf.
The change in strategy was undoubtedly inspired by two events. The first was The New York Times’ publication in mid-July of damaging deposition transcripts from a prior Cosby lawsuit, indicating that in the 1970s he had supplied quaaludes to an aspiring young model and engaged in sexual activity with her.
The second was a California Supreme Court decision last week permitting a civil claim for money damages relating to the alleged sexual abuse of a 15-year-old girl in 1974 to proceed through the court system. Famed and media-savvy plaintiff’s attorney Gloria Allred is handling the Judith Huth vs. William Cosby case on behalf of the claimant, now in her late 50s.
Allred is to sexual abuse lawsuits what Donald Trump is to Republican politics – a headline machine. The shift to a public response strategy indicates that the Cosby defense team is taking the Allred threat seriously.
Allred claimed appellate court “victory” for Huth, who says the sexual abuse was not rape, but sexual touching and molestation. No criminal charges were filed in the case, as neither Huth nor her parents brought the allegations to the attention of police until 2014 – long after the California criminal statute of limitations for the crime expired. Because of this problem, the district attorney declined to prosecute when Huth made an attempt to charge Cosby in 2014.
Had Huth or her parents made a timely report to police, the charges that Cosby probably would have faced in 1974 would have been for misdemeanor sexual abuse of a minor. In California in 1974, the maximum sentence for this offense was one year in jail, and prosecutors would have had until one year after her 18th birthday to file charges before the statute of limitations applied. The courts consider attempts to retroactively extend the criminal statute of limitations to be an unconstitutional violation of the ex post facto clause of the Constitution.
However, Allred and her client, as well as others similarly situated, were able to find a ray of hope in a statute the California legislature enacted in 1990, which extended the civil statute of limitations in childhood sexual abuse cases to old sexual abuse cases involving claims of “repressed memories.”
The theory is that the sexual abuse of a child is so offensive and so traumatic that the abused victim may repress the memory, only to realize many years later that molestation trauma from the distant past caused his or her psychological problems. Other states – in response to recent scandals involving the sexual abuse of children – have enacted similar statutes to permit the award of money damages in meritorious cases.
The California law states that a victim of childhood sexual abuse can begin a case only if he or she is over 26 years old and has filed a certificate of merit. To prevent fraud, the statute further requires an allegation that, as a result of a repressed memory, the plaintiff failed to file the action within the normal statute of limitations. The otherwise barred claim must then be asserted within three years of the victim becoming conscious of the abuse and injury.
Cosby’s California attorney, Martin Singer – sometimes described as a “pit bull” defender of Hollywood celebrities – argued that the Huth case should be dismissed and that the claim of repressed memory, which was revived within the last three years and neatly slips into the statute of limitations loophole, is absurd.
The Cosby defense team has claimed that Huth had in fact threatened to leak the story of her alleged 1974 Playboy Mansion encounter with Cosby to the media in an attempt to obtain a payoff from Cosby approximately 10 years ago, demonstrating that the claim of a recently revived memory is a fraud.
Allred’s claim of victory is somewhat misleading in that the appellate court has allowed the Cosby vs. Huth case to proceed only through the pretrial “discovery of evidence” process. The merits will be decided later on, and Allred will face the difficult task of proving that her client only recently remembered sexual abuse and injury that a decades-old encounter with one of America’s most famous television personalities induced.
If Allred is able to secure Cosby’s deposition, as she says she will, her real goal will be to obtain damaging admissions from Cosby regarding illegal drug and alcohol use to assist in the incapacitation and molestation of helpless victims. Her success in the Huth case could lead to success in many other clients’ cases. Allred will need to use her talents that have earned her the admiration of many women as a fearless fighter for women’s rights.
But on the other hand, Pressley, Cosby’s new advocate attorney, has made an impressive debut as a forceful advocate for the embattled actor. The stage is set for potential dramatic courtroom confrontations in the months ahead.
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