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R. Kelly is No Bill Cosby: He’s Worse

Wednesday, January 9th, 2019

The recent docuseries, Surviving R. Kelly, has many folks wondering if R. Kelly will be joining Bill Cosby in prison one day. Multiple state attorneys are looking into investigating possible charges against Kelly. Although a prior 2008 case involving 14 child pornography charges against Kelly was unsuccessful, this time may be different. It’s still too soon to tell if Kelly’s time is up. The docuseries helped to re-ignite the fire but the flame is still low for a prosecution or conviction of R. Kelly.

The issues facing any prosecutor who investigates and brings charges against Kelly will be credibility of witnesses and victims, statute of limitations, solicitation of victims by the prosecutors, length of time to bring charges (assuming the statute has not tolled) and the popularity of R. Kelly.

Unlike most of Bill Cosby’s victims, R. Kelly’s victims are African American and other women of color. A sexual assault case is always difficult to obtain a conviction. A sexual assault or rape case involving a woman of color presents an even further uphill battle due to implicit race bias.

In spite of the docuseries, the popularity of R. Kelly still soared. The streaming of his music soared during the docuseries. Even without the docuseries, Kelly’s “I believe I can fly” is played almost every Sunday on many gospel radio stations and in churches across the country. His “Step in the Name of Love” is played at many wedding receptions. And when the music starts, almost everyone is on their feet dancing to it.

Many of the women who are alleged to have been emotionally manipulated and sexually controlled by Kelly in a cult are over 18 years of age. Consent is a real issue for most sexual assault cases. Unlike Cosby, many of the victims allegedly held captive in Kelly’s orbit are not drugged. They are allegedly held against their will but not by drugs, alcohol or any other substance. They are held against their will allegedly by mind manipulation and psychological tactics by Kelly. Some refuse to come home despite pleas by their families.

In addition, Cook County prosecutor Kim Fox is soliciting potential victims to contact her office. If any of those potential cases lead to an indictment, there will be issues raised of coercion by the prosecution office. I applaud prosecutors who are looking into evidence against Kelly. The docuseries made me physically sick to watch it. The alleged acts were so gross that my heart bled for the victims.

R. Kelly is no Bill Cosby. He’s a much worse predator than Cosby, if the women’s accounts are believed.

Washington, D.C. Debbie Hines is a trial lawyer and former Baltimore prosecutor.

#TimesUp for Bill Cosby

Thursday, April 26th, 2018

BillCosbyIn a retrial of Bill Cosby’s case, a Norristown, PA jury of seven men and five women found him guilty of all three counts of sexual assault without consent and by drugging a victim who was incapable of consenting to sex. Cosby faces a maximum of 30 years in prison. There are many factors that can cause a retrial to end with a conviction. The main factor in the Cosby case was the #MeToo and #TimesUp movement which exposed other alleged sexual predators such as Matt Lauer, Charlie Rose, Harvey Weinstein, Russell Simmons, former Senator Al Franken, Kevin Spacey and a host of others.

For the first time, women alleging sexual assault and or harassment were viewed with less suspicion. The change in the nation’s attitudes towards sexual harassment swayed against Mr. Cosby in his retrial. Despite the inconsistencies in the victim, Andrea Constant’s accounts and a more aggressive defense by Mr. Cosby’s new lawyers, a more aggressive prosecutorial case brought in the long sought after verdict. Five other women testified in the prosecution’s case with one woman crying on the stand—despite the length of time since her encounter.

The defense changed counsel to Tom Messereau for the second trial. Messereau is known for the not guilty verdict in the Michael Jackson molestation trial. He used a more aggressive style. A more aggressive style apparently didn’t help the defense. Calling the victim a “pathological liar” and a “con artist” backfired. When I try cases, I never flat out call someone a liar, even if the evidence supports it. Often times, juries like to reach that decision on their own. The defense also likened the victim’s testimony to a “lynching”. As an African American, if I were sitting on the jury, I would have been completely offended by that characterization. Mr. Cosby’s case or the victim’s accusations do not amount to a lynching comparison. He is not facing a capitol crime for which he could receive the death penalty.

Cosby was seen laughing at times. While that may be his personality, I always tell my clients that any facial expression should be flat without smirks, laughing or any other emotions showing. I guess Mr. Cosby’s lawyer failed to give him that advice. Jurors are watching a defendant’s every move. The defense should know every little thing adds up.

The testimony took twice as long in the retrial. The deliberations were swift—suggesting that the prosecution’s case was believed by most of the jurors going into deliberations. When the victim was asked why did she agree to take the stand again, she replied two words—“for justice.” This time, justice was won for Andrea Constand and all the other victims sharing in her story. #TimesUp for Bill Cosby.

Washington, DC based Debbie Hines is an attorney, legal analyst and former Baltimore prosecutor.

Cosby Prosecutor Gave False High Hopes to Victims

Sunday, June 18th, 2017

BillCosby

In the aftermath of the Bill Cosby mistrial, many have been left wondering why the jury could not convict Cosby. After all, Cosby is alleged to have committed 60 sexual assaults on women. Having prosecuted sexual assault cases, despite what some have said was an easy case, nothing is farther away from the truth. No sexual assault case is ever easy to win.  Sexual assault cases are some of the most difficult cases to obtain a conviction.   And they are also some of the most heart wrenching cases.

 

Due to the psychological issues which surround the victims, numerous issues abound such as inconsistent testimony, long waiting periods in which to bring charges, difficulty remembering and often forgetting details and a host of other issues.  My sixteen year old self understands why a sexual assault victim would wait years before coming forward to tell people or to report a crime; my prosecutorial self knows the delays in those cases often make for acquittals or hung juries. The prosecution bears the high standard of proving its case beyond a reasonable doubt. And all of victim’s issues can boil down to reasonable doubts in the minds of some jurors.

 

When campaigning to become Montgomery County District Attorney, Kevin Steele made it his mission to try Bill Cosby.  It appeared as if the case against Cosby was brought on behalf of all of Cosby’s alleged victims and perhaps sexual assault victims everywhere.  And therein lay the problem. This was a case about Andrea Constand—not 60 other victims. In a court of law, Cosby’s case was treated the same way as any other sexual assault case.  The dynamics of a sexual assault case did not change because Bill Cosby is viewed as a career sexual assault perpetrator, in the eyes of many people.

 

The prosecutor sought to have thirteen alleged victims to testify to show a pattern and practice in Cosby’s case.  The judge denied the request.  That was the best shot for a conviction in this case. In the case of Jerry Sandusky, Penn State University’s prior athletic director, a judge allowed nine victims to testify.  He was convicted. And in the case of Oklahoma police officer Daniel Holtzclaw, a judge allowed fifteen victims to testify. Holtzclaw was convicted. In Michael Jackson’s criminal trial, the judge allowed testimony from two victims of sexual molestation. Jackson was acquitted after a jury deliberated for 32 hours over 7 days. Nothing is a certainty in a sexual assault case even with multiple victims.

 

There was no guarantee that Judge Steven O’Neill would allow thirteen victims to testify as the prosecution requested.  It is within the discretion of the judge depending on the facts of each particular case. In Cosby’s case, Judge O’Neil held that it would be too prejudicial for thirteen alleged victims to testify.  In a retrial, his opinion and rationale for excluding thirteen victims will likely be used by Mr. Cosby’s lawyers to avoid it from happening in a retrial.

 

Montgomery County D.A. Steele ran a political campaign on bringing charges and a conviction against Cosby. In doing so, he raised false high hopes and false high expectations of sexual assault victims in the Cosby case and those across the country.  He said following the trial that Andrea Constand deserves a verdict.  He meant to say she deserves a conviction.

 

To Constand and Cosby’s alleged victims, I say keep the faith.  To Bill Cosby, I say –stop celebrating, it’s not over yet.  To D.A. Kevin Steele, I say go and deliver on what you promised to all those women whose hopes you raised with false high hopes and high expectations.

 

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.

Bill Cosby Goes to Trial and Just Might Win

Monday, May 22nd, 2017

BillCosbyJury selections started on Monday, May 22 in the criminal case of Bill Cosby.  Cosby is charged  with aggravated indecent sexual assault in the case of alleged victim Andrea Constand.  Constand alleges that in either January or February of 2004 that Cosby drugged her and then sexually assaulted her.  The State’s Attorney filed charges within days before the statute of limitations tolled or ended any possible charges being filed. Since then, Cosby has become a pariah with most persons including his former celebrity friends shunning him and judging him guilty of Constand’s assault and those of 60 other alleged victims.

 

On June 5, 2017, Cosby will only face the charges of Constand.  The other alleged victims’ cases statute of limitations expired.  So those women mostly place their hopes in Constand that justice will be served in her case—thus vindicating the others who can’t press charges.

 

Constand’s case is far from a slam dunk. In reality, it faces many uphill climbs to reach a guilty verdict.  The previous State’s Attorney declined to press charges stating insufficient evident. That’s legal buzz words for cannot be proven in a court of law beyond a reasonable doubt.

 

So why did another State’s Attorney decide to pursue charges?  And does the case have sufficient evidence for a conviction?  As in all sexual assault or rape cases, multiple problems exist. Most cases, as the present one, rest on the strength of the victim and her account of the events.  The defendant cannot be compelled to testify and usually remains silent.

 

Andrea Constand will need to give the victim performance of all time to secure a conviction.  Cosby, age 79  and apparently blind, is charged with three felonies of aggravated indecent assault which carries 10 years for a maximum of thirty years, if convicted on all counts. At Cosby’s age, a conviction would amount to a death sentence for the comedian and former actor.  Cosby has called the trial a “public lynching” and alleges consensual sex.

 

The alleged facts surrounding the case are murky.  Constand alleges that in either January or February of 2004 she went to  Cosby’s house.  She had been to his house on two prior occasions where he allegedly tried to hit on her.  At the time, Contand was working for Temple University in the athletic department. And Cosby was an icon at Temple. What transpired on the alleged night of the incident, only the two of them know for sure.

 

One thing is for sure, Constand waited one year before alleging that Cosby sexually assaulted her.  She couldn’t remember the exact date—only January or February. In the interim, Cosby sent her tickets to his show in Canada.  She attended with her parents and brought him a sweater as a gift.  And she even went back to his house again after the alleged incident. She alleges that it was to confront him.

 

Cosby on the other hand testified at a deposition that he used to give women Quaaludes before having sex with them.  That testimony, part of his deposition in another case, will be allowed—although Quaaludes ceased manufacturer long before 2004. The jury will not be told that Cosby settled the civil case involving Andrea Constand. The testimony of one other woman who alleges Cosby assaulted her in the 1990’s will also be allowed.

 

Jurors are coming from the Pittsburgh area and will be sequestered once the two week trial begins outside of Philadelphia—where the alleged incident took place. It’s hard to fathom a prospective juror who has not heard of Bill Cosby or has an opinion on him. And  Allegheny County, where the jurors were selected,  is a conservative area.  Montgomery County, PA, where the case is being tried, has a high conviction rate. I don’t think the case will rest on what jurors think or know about Cosby—as much as what the victim’s testimony will be along with portions of Cosby’s deposition and statement to the police.

Most cases are won or lost on the type of jury that is selected. If those members of the jury are inclined to base their verdict solely on the evidence as they will be sworn to do, it may end up as a not guilty verdict—due to the what some may conceive as inconsistent behavior of the victim and other factors. If the jury wrongly either unconsciously or consciously  factors in the other 60 alleged victims, it may be a guilty verdict—as those jurors will likely believe he did something criminal, even if not something criminal to Andrea Constand.

 

Stay tuned for updates as the trial testimony starts on June 5.

 

UPDATE:  The jury began deliberations on June 12, 2017.  The jury asked several questions which bear on the issue of consent.  Judge O’Neil has read back portions of Bill Cosby’s  previous civil deposition. Cosby stated he wanted a romantic relationship with Constand.  He acknowledged that he gave her three Benadryl  pills which he described to her as “three friends.” to help her relax. If the jurors believe Constand gave consent, the verdict will be not guilty or in the alternative, a mistrial if all 12 cannot agree on a verdict. For Cosby, a mistrial would amount to a win.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She has prosecuted sexual assaults and defended those accused of sex crimes.

 

 

Deal Struck on Bill Cosby Case May Warrant Dismissal

Saturday, January 23rd, 2016
World Affairs Council- Creative Commons License

World Affairs Council- Creative Commons License

Just as  a judge dismissed the civil case for defamation against Bill Cosby last month, his criminal case may  go up in smoke before it barely gets started.  Over 50 women alleged Cosby engage in sexual misconduct, assault and/or rapes against them over the course of 40 years.  In a civil case for defamation, one of those women, Renita Hill, alleged that Cosby, his wife and attorneys made false statements about her in the media.  A Pennsylvania judge found no merit  to her case and dismissed it.

And now a  hearing scheduled  on Cosby’s  criminal case began February 2, 2016 before a Montgomery County judge in Pennsylvania on the issue of whether the District Attorney’s office violated an alleged 2005 agreement by the prior District Attorney, Bruce Castor, Jr.,  to refrain from charging Cosby in Constand’s case in exchange for his testimony in her civil case.  In the criminal case, Cosby’s lawyers have a good chance of having the only criminal case filed against Cosby dismissed, if the judge believes Castor.

 

Prosecutors charged Cosby in December with an aggravated indecent exposure charge involving a 2004 incident with Andrea Constand.  Shortly following the 2004  incident, Constand filed a civil law suit which ultimately settled.  Her lawyers wanted to depose Cosby in 2005.  And an alleged agreement was entered involving the previous Montgomery County Pennsylvania District Attorney that the Cosby deposition and any of his statements contained would not be used against him and  further he would not be charged for the incident—as an inducement for him to testify in the civil case.  That is crucial because the victim cannot remember all  of the details of what happened as she was allegedly drugged.

 

If the judge finds that there existed an agreement and upholds the prior agreement, the case should be dismissed.  A newly elected prosecutor cannot void any previous agreements entered into by his office. The issue will be whether there was an agreement.  And if the agreement did exist, it means the charges brought against Cosby were filed without merit and in violation of an agreement.

 

In a twist of fate, former District Attorney Bruce Castor, Jr. testified on behalf of the defense to support Cosby’s viewpoint.  The judge placed on hold a preliminary hearing pending the outcome on the issue. Present prosecutors pursuing charges against Cosby worked for Castor and do not recall the agreement or seeing any written documentation.

 

Now for the bad news for Mr. Cosby, there has been no smoking gun.  There isn’t a written agreement–just the memory of the former District Attorney who happenstance lost his job to the present District Attorney prosecuting Mr. Cosby. And the former civil attorney who represented Cosby in the civil case is deceased. So much hinges on the credibility of Bruce Castor and his recollection of the events.   And Castor does not seem to indicate there was ever a written agreement. Lawyers routinely document important agreements in writing–as well as unimportant agreements. And if Mr. Cosby’s presumably high paid lawyers allowed him to testify in a civil case in 2005 without a written agreement and only word of mouth, that’s highly questionable at best.

While an accused bears no burden of proof in a criminal trial,  the defense bears the burden of convincing a judge in the motions hearing to dismiss the case.  A decision is expected shortly.  However, based on the testimony with no written documentation, the criminal case will likely continue to proceed.

Even if Cosby eludes prosecution, he will still be deemed guilty in the court of public prosecution.

Update:  This post was updated to reflect the current hearing taking place.  Judge O’Neil refuses to dismiss case. Case now moves to preliminary hearing on March 8, 2016.

Washington, DC based Debbie Hines is a trial lawyer, legal and political analyst and former prosecutor.  She can be seen frequently in the media on Al Jazeera America, CBS News,  C-Span, MSNBC, BET, PBS among others.  Her Op Ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American. She is a native of Baltimore.

 

Why I like Bill Cosby’s Criminal Defense Lawyer

Thursday, January 14th, 2016

Bill Cosby’s next criminal court date in his sexual assault case is February 2 in a Montgomery County Court in Pennsylvania. The preliminary hearing originally scheduled on January 14 was postponed until February 2.  It is now indefinitely postponed. In its place, Cosby lawyer Monique Pressley’s Motion to Dismiss the Case as improperly charged and Motion to Recuse the Montgomery County Prosecutors will be heard. Pressley argues a previous agreement with the  prior prosecutor stated Cosby would never be charged.  The  prosecution case may be in for an uphill battle

Montgomery County, Pennsylvania prosecutors charged Bill Cosby, longtime TV Dad, with aggravated indecent assault without consent, aggravated indecent assault while complainant is unconscious or unaware and aggravated indecent assault while person impairs complainant. The incidents allegedly occurred on January 15, 2004 at Mr. Cosby’s Philadelphia suburban home against former Temple University employee, Andrea Constand.

From what I have seen  and read about Monique Pressley, she is an intelligent, aggressive and tenacious attorney who will mount a zealous defense on behalf of her client.  Having previously worked in the District of Columbia’s Federal Pubic Defender’s Office, she is skilled at handling criminal defense cases. And from all accounts that I have seen, she is doing a phenomenal job speaking on behalf of her client, asserting his right of innocence under the law—despite what the court of public opinion holds.

Often times, people will ask defense lawyers if they believe their client is innocent or guilty. Our beliefs of guilt or innocence as attorneys do not matter. The willingness of passionate defense attorneys to mount a zealous defense, as Ms. Pressley appears to be doing, is what matters.

No case is ever a slam dunk—despite what the public views as one. And sexual assault cases are among the hardest cases to prove and obtain a conviction. That is often because unfortunately the victim is the one who appears on trial too. The victim’s statements, inconsistencies, character, prior acts are all scrutinized for her credibility in the present case.

A judge will ultimately make the decision on whether other victims may testify. Other victims may testify in a case where there is a common scheme or plan known as “modus operandi”. Since over 50 other victims allege similar sexual acts and patterns occurred to them is one reason for some of the other victims to testify. But on the other side of the coin, a judge must decide if any of the other similar alleged acts are too prejudicial for a jury to hear. I am sure that Pressley will fiercely advocate why prosecutors cannot bootstrap Constand’s case with the other victims and the jury must weigh Cosby’s case solely on the instant charges.

Having a woman and particularly an African American woman is an added bonus in Cosby’s defense. Pressley will be able to cross examine on the charges without turning off potential women jurors. And having an African American female attorney standing beside Cosby, in the fight of his life, will subtly send a message and possibly raise doubts to what might be any African American jurors. Pressley’s fierceness in defending Cosby shines through.  And through her efforts, the case against Bill Cosby may never reach a jury.

Lawyers are required to zealously represent their clients. Ms. Pressley is more than meeting that requirement. Regardless of what I may think about Mr. Cosby’s guilt or innocence, he made the right choice in selecting Monique Pressley as his attorney.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor. When she is not representing and defending clients in court, she can be seen on air on Al Jazeera America, BET, CBS News, Fox 5 DC, MSNBC and other outlets. Her writings appear in the Huffington Post, Washington Post, Baltimore Sun and Baltimore Afro American. She is a native of Baltimore.