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Legal Lessons Before Cosby Retrial

By William Vogeler, Esq. on January 23, 2018 | Last updated on March 21, 2019

Is Bill Cosby seriously laughing as he approaches a retrial for sexual assault?

The standup joker took to the stage recently for the first time in years, his scandal pre-dating the Harvey Weinstein affair that has torched Hollywood. Meanwhile, the Cosby show has dragged on with the retrial set for April.

After so many women have publicly accused Cosby of drugging and raping them, it's hard to imagine his public appearances are part of a pre-trial strategy. It's never a good look to act like nothing happened when public opinion believes otherwise.

Court of Public Opinion

When lawyers or litigants try to win in the court of public opinion, they are gambling in a forum with no rules of evidence. For example, Nnovelist Terry McMillan wrote: "If you gave me front row seats to see Bill Cosby I'd burn them."

Jeff Romaine tweeted: "NO ONE should ever go see him publicly without bringing a sack full of rotten fruit to throw. I would just feel bad for the fruit."

When it hits late night, Cosby's attorneys will be wondering where they can find a friendly jury pool. Nobody will be laughing in that courtroom, especially if prosecutors are allowed to bring more witnesses into the case.

New Trial Strategy

Although Cosby is in the crosshairs, prosecutors are under pressure in the repeat performance. They failed the first time to convince the jury that Cosby drugged and sexually assaulted Andrea Constand.

This time, they want more than a dozen other women to testify about how Cosby did the same thing to them. According to reports, some 60 women have made similar allegations against him.

Prosecutors will have to overcome relevance, cumulative, and prejudice objections. But they also have Cosby's prior admission -- in a deposition during the Constand civil case -- that he used drugs to have sex with women.

If they get all that evidence in, it may be enough because the world has changed since the last trial. The Weinstein effect has gone mainstream, affecting virtually everybody who cares about sexual misconduct in America.

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