Cosby’s silence at trial paid off

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(CNN)Bill Cosby’s legal team made the right call not to have the comedian take the witness stand during his sexual assault trial, which ended Saturday in a mistrial.

Cosby, 79, was charged with three counts of aggravated indecent assault relating to an encounter with Andrea Constand, a former Temple University employee, at his home in 2004. Constand has accused Cosby of drugging and molesting her as she lay helpless on his couch. He has denied the allegations since 2005, claiming the encounter was consensual.
As proceedings wrapped, many pundits and Cosby supporters were surprised that the actor didn’t testify in his own defense. Many were also stunned after his lead attorney, Brian J. McMonagle, rested his case after presenting only one witness, a police detective who was on the stand for a total of six minutes.
    Those who disagreed with the defense teams’ strategy include my fellow CNN legal analyst, Page Pate, who wrote a thoughtful piece arguing why Cosby should take the witness stand.
    “Juries don’t like to convict celebrities unless there is overwhelming evidence that they are guilty,” Pate wrote. “And Cosby is not just another well-known entertainer or sports star. He is a beloved figure in American culture.”
    “If just one person on that jury looks at Cosby and sees Dr. Huxtable, or sees the pioneering comedian that he once was, then that one person can keep Cosby out of prison,” Pate added.

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    As much as I agree with Pate on most issues, I disagreed with his call for Cosby to take the stand. Jury trials are not the place for defendants to seek vindication or to tell his or her side of the story. When the state files a criminal action against someone, it has the burden of proving beyond reasonable doubt that the person is guilty.
    In our system, the defendant has no obligation to prove his innocence, or for that matter to put forth any witnesses or testify. When the state brings forth all its power, resources and institutional force against you, the system allows you to simply sit back and let them prove you’re guilty.
    Anybody who watched “The People vs. O.J. Simpson” knows that the actor overly confident in his intellect and celebrity thought he could win over jurors by the sheer force of his charm and personality. But when subjected to a tough mock cross examination, Simpson wilted under pressure. It was clear what a disaster his testimony would be.
    Simpson’s defense team made the correct decision in not letting him expose himself on the witness stand, and Cosby’s team, similarly, made the right choice. Cosby’s account of what happened between him and Constand was presented to the jury through his 2005 civil deposition and the interview he gave to the investigating police officers. Those statements were weighed by the jurors against Constand’s live testimony, and in the end, all of the jurors were not persuaded that the state proved its case against Cosby.
    Cosby’s absence on the stand may not have been satisfying to his many fans, the actors and celebrities who support him, or the 50 plus women who have accused Cosby of sexual assault and who saw this prosecution as a proxy for their claims, but this is the reality of our system. And it functions very differently than the court of public opinion.

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    Although Cosby’s team began what can best be described as a media rehabilitation tour outside of the courtroom after the mistrial was declared through blistering statements from his wife, Camille Cosby, and longtime publicist, Andrew Wyatt, it’s not clear that the entertainer will continue to speak out to tell his version of events, all without having to take an oath and subjecting himself to a blistering cross examination. I suspect that his defense team may advise him not to as the prosecutors wasted no time in announcing that they are planning to move forward with a retrial. And the comedian’s words outside of the courtroom — could be used against him the second time around.
    Unlike some other high-profile defendants, Cosby listened to the wise counsel of his legal team during the trial, and it would be in his best interest to keep on listening.

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