Statute of Limitations

10.21.15 5:00 AM ET

Two Months Left to Put Bill Cosby in Jail

A DA with an election coming up has only until January to bring charges for a 2004 sex-assault allegation that could very well be the last case in which Cosby can be charged.

Yes, they do serve Jell-O in jail.

And Bill Cosby still might end up behind bars thanks to his own sworn admissions and to the dozens of women who have come forward

District Attorney Risa Vetri Ferman in Montgomery County, Pennsylvania, now has no excuse not to make an all-out effort to put him there.

But she will have to move quickly.

Ferman only has until January before her state’s 12-year statute of limitations kicks in on the 2004 sexual assault allegation that may very well be the last case wherein Cosby can be charged. 

An already tangled situation is further complicated by an election next month in which Ferman, the present district attorney, is running for judge and a former district attorney is seeking to reclaim the office.

The former district attorney, Bruce Castor, happens to be the same prosecutor who declined to charge Cosby in 2005.

The second in command at the time was none other than Ferman, who went on to get elected district attorney and is now the one who will decide whether to charge Cosby before it is too late.

Should she now decide to proceed and if Castor is elected, his first big case would be prosecuting the man he chose not to prosecute more than a decade ago.

One thing that has changed since then is a key admission that Cosby made in a deposition for the civil case.

The case was settled before trial, and the deposition remained under seal until July, when a federal judge ruled that Cosby had “narrowed the zone of privacy that he is entitled to claim.”

“Defendant has donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, childrearing, family life, education, and crime,” Judge Eduardo Robreno said in response to a petition by the Associated Press to have the court file unsealed. “Defendant has freely entered the public square.”

The judge added that numerous other women had come forward with similar allegations and that “the Defendant has responded publicly with denials as to the veracity of the claims and questioned the possible motives of his accusers. By joining the debate about the merits of the allegations against him, he has further diminished his entitlement to a claim of privacy.”

The judge concluded, “The stark contrast between Bill Cosby, the public moralist, and Bill Cosby, the subject of serious allegations concerning improper (and perhaps criminal) conduct, is a matter as to which the AP—and by extension the public—has a significant interest.”

In other words, Cosby brought it all on himself. 

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The judge immediately unsealed the court file, which included documents that cited relevant sections of the deposition. The New York Times then obtained the entire transcript simply by ordering it from the court reporter, as with any unsealed case.

In those 1,000-some pages, Cosby admitted to having sex with numerous women after giving them drugs. He also described a phone conversation he had with accuser Andrea Constand’s mother after the incident in January 2004.

“I apologized. I said to the mother it was digital penetration,” Cosby testified. 

That would make it a sexual assault such as is described in Constand’s civil suit. The complaint says she was at Cosby’s home in Cheltenham, Pennsylvania, around 9 p.m. for what she thought would be career advice when he gave her three blue pills he described as an herbal medication that would “relax” her.

“Within a short period of time, Plaintiff’s knees began to shake, her limbs felt immobile, she felt dizzy and weak, and she began to feel only barely conscious,” the complaint says. “Defendant led Plaintiff to a sofa, because she could not walk on her own, where he laid her down, under the guise of ‘helping her.’ Defendant positioned himself behind Plaintiff on the sofa, touched her breasts and vaginal area, rubbed his penis against her hand, and digitally penetrated her.”

 The complaint says that she then lost consciousness until around 4 a.m.

“Plaintiff awoke feeling raw in and around her vaginal area… Her clothes and undergarments were in disarray… Defendant greeted her in his bathrobe.”

Constand subsequently returned to her native town of Durham, Ontario. She finally went to the police there on Jan. 13, 2005, a year after the alleged attack. The case was referred to police in Cheltenham.

A source sympathetic to the then-DA, Castor, insists that Constand’s account as detailed by an initial police report signed by her does not describe penetration or other behavior that would raise the crime to a felony. Castor told reporters that the year-long lapse before Constand went to the police made recovering forensic evidence impossible. 

As Constand’s allegation reached public attention, other women came forward with accounts of being drugged and sexually assaulted. Castor nonetheless decided there was insufficient evidence to prosecute. He made his decision official with a public statement dated Feb. 17, 2005:

“The District Attorney has reviewed the statements of the parties involved, those of all witnesses who might have first-hand knowledge of the alleged incident including family, friends and co-workers of the complainant, and professional acquaintances and employees of Mr. Cosby. Detectives searched Mr. Cosby’s Cheltenham home for potential evidence. Investigators further provided District Attorney Castor with phone records and other items that might have evidentiary value.”

The statement continued, “Lastly, the District Attorney reviewed statements from other persons claiming that Mr. Cosby behaved inappropriately with them on prior occasions. However, the detectives could find no instance in Mr. Cosby’s past where anyone complained to law enforcement of conduct which would constitute a criminal offense.”

Women who might have been afraid for any number of reasons to go to the cops about Cosby seemingly did not make a decisive difference, even if they all had a similar tale.

The statement concluded, “The District Attorney finds insufficient credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt... The District Attorney concludes that a conviction under the circumstances of this case would be unattainable. As such, District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter.”

By then, “sources connected with Bill Cosby” had told the news show Celebrity Justice that “before his accuser went to the police, her mother talked to the comedian to make things right with money… a Cosby rep call[s] this classic shakedown.”

On Feb. 21, Cosby coyly told the National Enquirer in an “exclusive interview” that while he was not ready to say Constand’s motive was money, “I am not going to give in to people who try to exploit me because of my celebrity status.” 

On March 8, Constand filed a civil suit against Cosby. She acknowledged in her deposition that she had consulted with a lawyer early on but insisted she had done so seeking guidance on how to proceed from Canada with an allegation in the United States—and not with an initial aim of suing.

Constand testified, “I never intended to sue Mr. Cosby, but to… prosecute, to move forward in the investigation.”

Cosby’s attorney, Patrick O’Connor, asked, “You never intended to sue Mr. Cosby, you intended to put him in jail, is that correct?”

Constand said, “If you want to put it like that, that’s fine.”

O’Connor said, “So, money was not your issue?”

Constand said, “No, it was not.” 

When Cosby’s turn came to be deposed, he acknowledged that he had decided to give the National Enquirer the “exclusive interview” in exchange for the magazine agreeing not to run an article detailing allegations by another woman that he had similarly drugged and sexually assaulted her. 

Cosby also testified that he, not Constand’s mother, had initiated their phone conversation and that she never asked for money, only an apology.

In recounting the apology, Cosby testified he had told the mother that he had digitally penetrated her daughter.

Cosby and Constand settled the case before it went to trial. The settlement included a confidentiality agreement. The depositions along with the court file remained under seal for a decade before a judge ruled that we have the right to know when somebody might be slandering sex assault victims and trying to con the rest of us.

Even as it all was becoming public, Ferman apparently continued to believe that the crime in question was only a lesser crime as is supposedly described in the initial police report. 

“As we sit here today, in 2015, we’re in a situation where any statute of limitations for any criminal acts would have long since passed,” Ferman said of the case in an interview with a local news station on July 7.

The statute of limitations for most crimes in Pennsylvania is two years. But for felony sexual assault it is 12 years. And Ferman must have since reconsidered, if press reports that her office is taking a new look at the case are accurate.

A source close to Castor suggests that a prosecutor would be unable to use Cosby’s deposition against him because he testified in the civil case without citing the Fifth Amendment on the belief that the district attorney would not be prosecuting him.

But other legal experts dispute this, noting that prosecutors do not impart immunity when they close a case and can always reopen it. 

In any event, defendants are often reluctant to take the Fifth Amendment in a civil case because it can make a bad impression and restrict your testimony at trial.

Not that Cosby admitted to sexually assaulting anyone in his deposition. He only said he gave supposedly willing women drugs and that he had sex with them, not that he did so when they were incapacitated.

In the continued absence of physical evidence, the Constand case is still one of he said, she said.

But if Constand’s mother recalls Cosby speaking of penetration in the phone conversation with him, it becomes he said, she and her mom say.

And if a judge would allow the allegations of four dozen other women as proof of a similar scheme, then it becomes he said, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she, she said.

But if no charges are brought before January, it will not matter what anybody says.

Out in Los Angeles, police have been investigating a 2008 complaint by a woman named Chloe Goins, who says she was drugged and sexually assaulted by Cosby in the Playboy Mansion in 2008.

Goins’s complaint begins by detailing 40 similar assaults on other women—Andrea Constand being the 40th. The complaint then reports that Goins was attending an event at the Playboy Mansion when “shortly after she arrived, she was introduced to Bill Cosby and Mr. Hugh Hefner.”

“At one point during this conversation, Bill Cosby stepped away and then came back shortly thereafter with two drinks, one of which he gave to Ms. Goins,” the complaint says. “Ms. Goins began drinking the drink given her by Bill Cosby and immediately began feeling sick to her stomach and dizzy.”

The complaint continues, “Mr. Hefner asked Ms. Goins if she wanted to go to a room and lie down. Bill Cosby responded that he would help by showing Ms. Goins to one of the rooms at the Mansion.”

The complaint says that shortly after she was escorted away by Cosby, she “blacked out.”

She awoke sometime later to find she was “lying on her back on a bed and she was naked.”

“Her clothes had been removed without her consent,” the complaint says. “Her breasts were wet and sticky, as if someone had been licking them, and Bill Cosby was biting on one of her toes as he crouched at the end of the bed.”

The complaint goes on, “Ms. Goins was startled and asked Bill Cosby what he was doing. Bill Cosby then got up and immediately left the room.”

One possible and maybe insurmountable problem with a possible prosecution is that Goins was reported to have been 18 at the time of the incident. The statute of limitations in California for such an assault when the victim is 18 or over is eight years for civil cases, but only six for criminal cases.

A spokesman for Goins’s lawyer, Spencer Kuvin, said (really), “The age issue is unsubstantiated. Chloe has never publicly stated how old she was at the time of the attack… Any representation of her age at that time is speculation.” 

“We firmly believe Ms. Goins is within her statutory limits to file her complaint in both civil and criminal courts,” Kuvin said through the spokesman.

A spokeswoman for the Los Angeles District Attorney’s office refused even to confirm in general terms the current statute of limitations in California.

“Because it is Bill Cosby we have no comment,” the spokeswoman said (really). “Maybe you can call a law professor.” 

Whatever her age, Goins can join all the other shes who say they were drugged and assaulted by Cosby. 

And that could make Hefner a possible witness against Cosby in any number of civil cases. Hef would no doubt be asked under oath if such assaults were something of a thing at the Playboy Mansion.

Hef would also be a possible witness in a criminal case if DA Ferman acts before the Pennsylvania statute of limitations takes effect in January and the Cosby case makes it past any number of legal hurdles to trial.

Maybe, just maybe, Ferman is worried that she might appear to be grandstanding for political purposes if she charges Cosby before the election. She will still have another seven weeks after Election Day to act.

Then the case would pass to the newly elected DA, either Castor or Ferman’s second in command, Kevin Steele. Castor would surely give a revived criminal case his all, even though his campaign treasurer happens to be a partner in the law firm that defended Cosby during the civil suit.

Meanwhile, an online check with the Pennsylvania Department of Corrections confirmed that Jello is indeed served in the state’s 26 prisons, though a one-time pitchman might rue that it is officially listed generically as gelatin.

Should an inmate run afoul of the rules, the first ingredient listed for the “nutraloaf” ground-up meal served as punishment for a maximum of 21 days is this:

 “Gelatin (any flavor).”