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Bill Cosby: Criminal Assault Charge Complicates Civil Lawsuit Battle

The criminal indictment of Bill Cosby on a sexual assault charge is likely to shift the dynamics when it comes to the slew of civil lawsuits that have been filed against the comedian. But an attorney for more than two dozen of his alleged victims admits he is not likely to face the threat of many more criminal charges because the statute of limitations on many of the incidents has long passed.

Cosby was arraigned on three felony counts of indecent aggravated assault on Wednesday in Montgomery County, Pa., stemming from an alleged attack on a former Temple University employee at his Pennsylvania home 12 years ago. Andrea Constand is accusing Cosby of drugging and violating her. Bail was set at $1 million, and Cosby was released shortly after his booking Wednesday afternoon. He did not enter a plea at the brief arraignment.

“Make no mistake, we intend to mount a vigorous defense against this unjustified charge and we expect that Mr. Cosby will be exonerated by a court of law,” Cosby attorneys said in a statement following his arraignment. Dozens of women have come forward with allegations of being drugged and raped by the 78-year-old comedian, and a number have filed litigation, some for sexual assault and others for defamation.

Cosby, meanwhile, began to mount a counterattack earlier this month, filing a defamation suit against seven of his accusers. The suit claims they maliciously lied about sexual assaults. Constand was not among the seven plaintiffs. She reached a settlement of her civil case against Cosby in 2006, although it was inconsistencies in Cosby’s story as recounted in depositions in that case that spurred Montgomery County officials to re-open Constand’s criminal proceeding in July.

Gloria Allred, the Los Angeles defense attorney who represents 29 alleged Cosby victims, said at a news conference Wednesday that it is unlikely Cosby will face more criminal charges because of the length of time that has passed. Some of the accusations against Cosby stretch back to the 1960s.

“Unfortunately, for most of the women who allege that they are victims of Mr. Cosby, it is too late for their allegations to be the subject of a criminal prosecution or a civil case because of the arbitrary and restrictive time limits set by law,” Allred said. She called Wednesday’s news of the criminal charges in the Constand case “the best Christmas present they have ever received.” She said many women would be willing to testify against Cosby in court.

The Los Angeles district attorney’s office is investigating an allegation by model Chloe Goins that she was drugged and assaulted by Cosby at a 2008 party at the Playboy Mansion. That incident would be within the statute of limitations for criminal charges.

“My client is very happy that Mr. Cosby will be brought to justice in the criminal court system. She hopes that the L.A. District attorneys will also see fit to bring charges in her case,” Goins’ attorney Spencer Kuvin told Fox affiliate KTTV Los Angeles on Wednesday.

Greg Gianforcaro, a criminal defense attorney who specializes in sex abuse cases, said that with a criminal case now proceeding, when it comes to civil litigation, “Bill Cosby is almost certainly going to plead the fifth in any civil deposition. He’ll make the argument that ‘I am not going to say anything because I am facing a criminal prosecution in Pennsylvania.’ “

It’d be up to a judge to determine whether a deposition of Cosby could proceed involving accusers other than Constand.

Steven Fairlie, a criminal defense attorney in Pennsylvania, said that when there is a criminal case pending as a related civil case is proceeding, often a judge will stay depositions pending the outcome of the criminal case.

But he noted that Cosby’s case may be different: He already gave a deposition in Constand’s civil case. That deposition was sealed in 2006 when the case was settled, but a judge unsealed it this year amid the cascading allegations against Cosby. That could also be a factor in a judge’s decision to allow a new deposition to go forward.

“It is always a bad idea to testify in a civil case from which facts from a criminal case could stem,” he said.

Dmitry Gorin, of Eisner & Gorin in Los Angeles, said that the criminal charge “really should not affect the civil cases at all.”

If Cosby were convicted in the Constand case, a plaintiff may very well try to admit that fact into evidence in another accuser’s civil case. “It is going to be up to the trial judge. A judge has to balance the probative value versus the prejudicial effect,” Gorin said.

By the same token, if Cosby were acquitted, “one might argue that does not help the other cases proceeding in a civil situation,” Gianforcaro said.

Montgomery County District Attorney-elect Kevin Steele ran for office with a campaign that cited a previous DA’s failure to file charges against Cosby in 2005, when the Constand case was first brought to Pennsylvania authorities. Cosby attorneys pointed to the political race as the reason for the charge filed in the 12-year-old case.

But in the past 14 months, more than 50 women have gone public with horror stories of assault by the entertainer who was once a beloved personality, known for his humor about parenting and marriage and his portrayal of genial TV dad Cliff Huxtable on the hit NBC sitcom “The Cosby Show.”

But Cosby’s reputation has been destroyed during the past year. His efforts to mount a TV comeback at NBC were scuttled by the swirl of accusations, and he was dropped as a client by talent agency CAA, among many other repercussions. Montgomery County authorities raced the clock to file the criminal charge against Cosby just as the statute of limitations on the alleged Constand assault was set to expire.

Cosby said in the Constand depositions from 2005 and 2006 that the sexual activity was consensual. Legal experts say that his defense is likely to raise questions of just what new information prosecutors have now as opposed to a decade ago, when the case was initially investigated and charges were not filed.

“The biggest issue is going to be what has changed from then until now,” said Adam Thompson, criminal defense attorney in New York.

Civil plaintiffs could benefit from the evidence and testimony presented in the criminal proceedings. “Now they will have an arsenal of stuff,” he said. “All of the plaintiffs will greatly benefit.”

A big issue in the criminal case will likely be whether reference can be made to the dozens of other civil allegations against him. Fairlie said that the prosecution “is certainly going to argue that under a ‘common scheme theory,’ modus operandi essentially, that this is a signature crime.”

“As a general rule, prior bad acts are not admissible at trial. They are each tried separately without the evidence of the others,” Fairlie said.

But Gianforcaro said that he expects the prosecution also to try to use statements that Cosby made in the Constand deposition. One of the exceptions to the hearsay rule, he noted, are out-of-court statements made by the defendant.

That is a challenge for Cosby’s defense. If there is something that Cosby said that could hurt him, Gianforcaro said, then “I think the jury may be looking for what Bill Cosby would have to say to explain what is in is deposition.”

The problem with that is it opens up the possibility of criminal prosecutors calling other accusers as rebuttal witnesses.

“If he does that, it could open up a Pandora’s box and allow other accusers to come in,” he said. “It is a very precarious situation that Bill Cosby is in.”

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