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AT THIS HOUR WITH BERMAN AND MICHAELA
Bill Cosby Charged with Sexual Assault; Affluenza Teen and Mom Fighting Return to U.S. Aired 11-11:30a ET
Aired December 30, 2015 - 11:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: This is CNN Breaking News.
[11:00:30] JOHN BERMAN, CNN ANCHOR: Hello, I'm John Berman in New York. I want to welcome our viewers in the United States and all around the world.
The breaking news this morning, a legal bombshell. Moments ago, Bill Cosby charged with aggravated indecent assault in the first degree. Sexual assault. These charges filed in Montgomery County, Pennsylvania, in a case that's about 12 years old.
Now dozens of women have come forward alleging that Cosby drugged and raped them, but this -- this is the very first time that he has faced criminal charges. We've learned that Cosby himself will appear in court to be arraigned this afternoon.
(BEGIN VIDEO CLIP)
KEVIN STEELE, FIRST ASSISTANT DISTRICT ATTORNEY, MONTGOMERY COUNTY, PENNSYLVANIA: These charges stem from a sexual assault that took place on an evening in early 2004 at Mr. Cosby's home in Cheltenham Township, Montgomery County.
Mr. Cosby is charged with aggravated indecent assault. This is a felony of the first degree. Mr. Cosby's attorney has been notified of the charges, and he is expected to be arraigned later this afternoon.
(END VIDEO CLIP)
BERMAN: Cosby is 78 years old. He faces up to 10 years in prison if convicted of this charge. Joined now by CNN correspondent Jean Casarez, CNN legal analyst Paul Callan and criminal and civil trial attorney Eric Guster.
Jean, this case dates back to 2004. Lay it out for us. What is the case and exactly what are these charges?
JEAN CASAREZ, CNN CORRESPONDENT: 2004, Andrea Constand is the alleged victim. She now lives in Canada. She is a massage therapist. But at the time, she was an employee -- she was the director of operations for the women's basketball team at Temple University. She was introduced to Bill Cosby, long associated with Temple University, and he became, in essence, her mentor.
And he would talk to her about her future and saying he believed in her. He invited her over to his home for dinner on separate occasions. And according to the affidavit for probable cause, the prosecutor is alleging that the first two times that she went over for dinner, that he began to make a sexual advance, and she stopped it. But he was a mentor to her. So she allowed him to stay in contact with her a third time, and this is according to the affidavit of probable cause.
Bill Cosby actually gave her some pills which rendered her unconscious. That is when prosecutors are alleging that an indecent sexual assault was made, which legally is penetration by a part of the body of Bill Cosby, as I'm reading in this affidavit and this criminal complaint right here.
I did speak with Andrea Constand's lawyers moments ago. She was informed yesterday that this was going to be happening. And they are forever grateful to the district attorney's office because a decade ago, the district attorney at the time opted to not bring charges, saying there was not sufficient evidence. The current district attorney who just won re-election announced in the press conference that this summer, brand new evidence became unsealed. That, we believe, was the civil deposition of Andrea Constand back in 2005.
We at CNN, along with "The New York Times," were able to get a copy of that 3,000-page document where he is asked questions about the alleged incidents in 2004. And if you remember, Bruce Castor who opted to not bring charges, he told CNN last year that he had never seen the deposition in the civil case. He had no idea what it said, why he didn't know and why he hadn't read it, we don't know.
But the fact is, now brand-new criminal charges against Bill Cosby and for the first time ever, this would lead to prison time, if convicted.
BERMAN: All right. Up to 10 years, if convicted of this charge. All right. Jean, stand by. I want to bring in our attorneys Eric Guster and Paul Callan.
Paul, first of all, just what happened today? These charges have been filed. Bill Cosby will appear in court this afternoon.
PAUL CALLAN, CNN LEGAL ANALYST: Yes, this will be a big moment given all of the publicity related to all of the women who have made these charges against Cosby. But the actual arraignment itself will not -- there won't be much going on. I mean, he'll be advised of the charges. There may be a decision about bail, and then there will be a discovery schedule that eventually will be worked out.
BERMAN: The timing here. My understanding is the statute of limitations on this alleged incident runs out tomorrow.
CALLAN: Yes. I mean, it's shocking that they were able to put this thing together and file it at the last moment. And what I find especially surprising, John, is that this deposition which the new district attorney said he is largely basing corroboration of his charges on was only recently released.
[11:05:12] How could law enforcement authorities not have sought that deposition of testimony under oath at a previous date and tried to get it unsealed? Certainly evidence of a crime given in a court proceeding under oath should be turned over to a district attorney as part of a criminal investigation.
BERMAN: There are a lot of complicated legal angles here to be sure, Eric. This stems from a civil case. There were criminal charges that were not filed back in 2004, 2005, but there was a civil case and a civil settlement and a confidentiality agreement agreed to apparently by Andrea Constand and Bill Cosby, and then this deposition was, you know, was given, unsealed, made public this summer.
Explain to me how that will play into this criminal case.
ERIC GUSTER, CRIMINAL AND CIVIL TRIAL ATTORNEY: The deposition is exactly why this case has come about because that gave the prosecutors enough evidence to go forward. They read Cosby's deposition. They read where Cosby said he penetrated her. So that gives them enough evidence to move forward.
Now the problem is going to be going through the criminal proceeding is, is that admissible? Because the courts have to make sure that if they admit something, that it does not overly prejudice the jury with their decision on guilt or innocence. So that's going -- it's going to be a battle of the motions, as we say in trial law. They're going to do everything they can to keep that deposition out of trial going forward.
BERMAN: But, Paul, will they be successful in that? Because under oath, Bill Cosby apparently said yes, there was this contact, you know, this is not a comfortable subject to talk about. I mean, sexual assault here, he's charged essentially with penetration. He testified to that under oath. Will that be able to be admissible?
CALLAN: Well, there are two issues here. Obviously the first is can you get it into evidence? I think you can clearly get it into evidence because this was not a -- you know, if it was a law enforcement situation and Cosby was taken into custody, they didn't give him his Miranda warnings, then he could say well, you know, it shouldn't be admitted. He voluntarily submitted to a deposition, raised his right hand that he was going to tell the truth. It's relevant in a criminal proceeding. So I think it gets into evidence.
But in looking over the deposition, Cosby, while admitting that he would frequently carry Quaaludes and give them to women says that it was always done on a voluntary basis. And he does not admit ever having sex with a woman who was unconscious or unable to consent. So Cosby's people will claim that that deposition does not suggest criminality. Maybe bad judgment, maybe a lot of other things, but not aggravated sexual assault.
BERMAN: Well, there are some -- hang on, Eric, because there are some facts here that apparently will be agreed to by both sides. One, that Andrea Constand was in Bill Cosby's home, that there was this contact, but the issue will come down to whether it was consensual.
GUSTER: And consent is the big issue. And this is -- this is the big issue going forward, all types of sexual assault cases. If a person's unconscious or they can't say yes or no, that is not agreeing to sexual assault or sexual contact. That is what Cosby's problem is going to be. If he gave this young lady Quaaludes, she passed out, or she was obviously unconscious or she was delirious, that is not giving consent to any type of touching or penetration.
BERMAN: Even if she took the Quaaludes consensually?
GUSTER: Even if she took the Quaaludes consensually. And that is something that is evolving over time when we see people going to parties and clubs and taking drugs. If a woman is unconscious, she can't consent to sex. That's a problem.
CALLAN: This has always been the law. An unconscious woman cannot consent, and it doesn't even matter that she maybe previously consented.
CALLAN: But in this deposition, I noticed Cosby hedged and Cosby said she wasn't unconscious when I was with her. She may have taken the drug, but she wasn't unconscious.
BERMAN: And that will be -- that will be what is presented before the jury there.
CALLAN: So there's going to be a fight about that. Yes.
BERMAN: Now does this open the door to the dozens and dozens of other accusations out there? A lot of other women have come forward and said that Bill Cosby drugged them or raped them or both. Now these would be what's called, what, prior bad acts, Paul. I'm not saying that these will result in more criminal cases, but could these allegations factor into this case? Could we hear from these women?
CALLAN: Well, you know, the law is very interesting in this area. Normally prior bad acts are not admissible because you want a case decided on what happened in this case, not what somebody did 15 years ago. On the other hand, if there's a pattern of conduct that the defendant engages in overtime and he uses that same pattern in the commission of the crime, it's relevant. So I say they may get the prior incidents in this case.
BERMAN: Because we're talking about that potentially. Certainly prosecutors will say there's a pattern here, drugs and sex.
GUSTER: And that's why the prosecution may call in some of the other women, to show this is what Cosby typically did in order to sexually assault women. They may not have had the chance to bring sexual assault charges in those cases, but if they can show that it's relevant to this trial where they can show he did this -- did this methodically every single time.
[11:10:07] That was his M.O., as we commonly say and you see on "Law & Order," that's his M.O. That's what he typically does, it may come into evidence and that could hurt him.
CALLAN: You know, John, Cosby faces a bigger problem in this case. Is there anybody in America who hasn't heard about all of the allegations made against him? Remember the "New York" magazine cover with all of the women. I mean, you could fill a school bus with the number of women across America who claim to have been sexually abused by Cosby.
GUSTER: Getting an impartial jury is going to be the problem.
GUSTER: How is he going to get a fair trial?
BERMAN: Despite the fact -- gentlemen, stand by, because despite the fact that this has been going on for, you know, months and years in some cases with women coming forward with allegations, today for the first time criminal charges filed. Today for the first time, Bill Cosby will appear in court this afternoon to face these charges to be arraigned.
Eric Guster, Paul Callan, stand by. A lot more breaking news this morning.
Another legal case dealing with the so-called affluenza teen, the fugitive and his mother, they are now fighting extradition to the United States. We thought they would be back in Texas this morning, but there is news about their movement, surprising news. We'll have details next.
Plus, we're getting word that a United Airlines plane has skidded to the edge of the runway in Chicago's O'Hare Airport. So busy this time of year, holiday travel. The 737 from Seattle was taxiing to the gate when it tried making a turn. When it could not make that turn in time, ground crews were brought in to pull the plane back on track. The airline expects all passengers and crews to deplane shortly. We'll get an update from Chicago just ahead.
ANNOUNCER: This is CNN breaking news.
BERMAN: All right. John Berman here in New York again. Welcome to our viewers here in the United States and around the world. We have more breaking news this morning.
[11:15:01] Just moments ago, we learned the so-called affluenza teenager and his mother, they are fighting their return to the United States. Ethan Couch and his mother, we thought they would be back in Texas as soon as this morning. We have been told that repeatedly by officials in the United States and Mexico.
This after they were arrested in Puerto Vallarta on Monday. We have some new video to show you. It shows the mother and son inside a store sometime before their capture. The 18-year-old was a fugitive for three weeks, so was his mother. He violated probation. He had been on probation for killing four people while driving drunk. But again the news we are just learning now, his extradition to the United States, his arrival in Texas, delayed.
The question is why? And for how long? Our Ed Lavandera is in Dallas with new details this morning.
Good morning, Ed.
ED LAVANDERA, CNN CORRESPONDENT: Good morning, John. Well, the sheriff in Tarrant County in Fort Worth is telling us that he found out just a short while ago that there would be no chance of Ethan Couch and his mother, Tonya Couch, returning to the United States today. This is because the sheriff has been told that they have filed some sort of court paperwork there to delay their return. So the question now is just how long this delay will last.
The sheriff says he isn't sure if it will last a day, several days or several weeks at this point. But clearly, the Couches putting a wrench in the plan here today to return them back to Texas with this paperwork that has been filed, slowing things down. So authorities here in Texas trying to make sense of it all, trying to figure out what exactly the next step is going to be. And also, we're trying to get our hands on those documents as well to kind of get a sense of what the Couches are thinking here in this situation.
They were captured Monday afternoon in this apartment building in Puerto Vallarta, Mexico, far from Fort Worth, Texas, where Ethan Couch was supposed to have been making, over the last couple of weeks, meetings with his probation officer. Ethan Couch obviously in a great deal of trouble as prosecutors are trying to move his case from the juvenile system into the adult system. And obviously even more trouble for his mother who faces a felony charge and up to 10 years in prison -- John.
BERMAN: All right, Ed. Ed Lavandera for us in Dallas.
I want to bring back Paul Callan and Eric Guster right now to talk about the legal implications here.
Paul, let me start with you. They're fighting extradition to the United States. Delaying their return here, but is there any chance they'll win this?
CALLAN: Interesting question. There is an extradition treaty with Mexico. However, this throws a real monkey wrench in the process because extradition is an elaborate process. If you think back to the Amanda Knox case, we talked about it a lot on the air. Remember she was tried in Italy. The question was could Italy extradite her?
Elaborate procedure that winds up eventually with the attorney general and the secretary of state and a warrant being issued. And in the end, the U.S. has to prove that whatever he's being extradited for is a crime in Mexico, and that the right person has been arrested. And if those two things are fulfilled, generally you are extradited. So he'll be extradited, but it could delay it for three, four, five months, at least, if they fight. BERMAN: The idea of justice in this case is a relative term to say
the least after what he was sentenced to. And now you have the idea of whatever justice is being meted out here being delayed like this, it's just got to infuriate prosecutors and law enforcement in Texas.
GUSTER: Not only prosecutors and law enforcement, but it infuriates the public. When you have a boy, a young boy, who has been -- who was drunk driving, killed four people and got off the hook with probation, that is getting off the hook in anyone's imagination, in anyone's definition of this.
Then he violates his probation which means that he just snubbed his nose at the prosecution. He snubbed his nose at law enforcement. And when we're looking at cases like this, and you think of people versus -- being wealthy, versus people who -- the haves and have-nots, the justice system does not work fairly for both of those people, for the people who don't have. And this young man uses money as influence to get one heck of a deal, and now you're looking at him fighting again.
BERMAN: You know, is there any way to interpret this, Paul, other than they're trying to work the system right now and to thumb their nose at law enforcement?
CALLAN: Well, you know, they're not too smart about it because, frankly, you know, if they had done some research, they should have found a country that did not have an extradition treaty with the U.S. instead they go to a hot vacation spot, Puerto Vallarta, like who's not going to spot them there? So we're not dealing with very smart fugitives.
BERMAN: But we do also know, and this is the last point, Eric. Again, we have learned over the last couple of days that because he was in the juvenile system, because of probation violation, skipping town happened while he was in the juvenile system, he faces a maximum of, what, 120 days for fleeing the country?
GUSTER: Yes. Four months up to his birthday. But the Texas D.A. is going to try to get this case moved to adult court which means that the 10 years that were probated could actually be placed in effect for him. So hopefully he'll get ten years because he should have gotten that from the beginning.
BERMAN: All right. Eric Guster, Paul Callan, thanks so much.
GUSTER: Thank you.
BERMAN: We do have another breaking story, a big breaking legal story.
[11:20:03] Bill Cosby charged with sexual assault. He is expected to appear in court today. Just ahead, I'm going to speak with Michael Jackson's former lawyer. We're going to talk about how Bill Cosby will try to defend himself.
Plus, Donald Trump holding a rare daytime rally in South Carolina. This is his final rally of 2015. What a year it has been for Donald Trump. And he has new ammunition on the trail, talking about Bill Clinton, Hillary Clinton.
We're going to dip in live to this event coming up next.
BERMAN: All right. Our breaking news. For the first time, Bill Cosby criminally charged with aggravated indecent assault. This goes back to a 2004 case involving a then-Temple University employee, Andrea Constand. She first came forward in 2005. She was told there was not sufficient evidence, but now a district attorney in Montgomery County, Pennsylvania, says new information that came to light this summer is enough to bring these charges. The D.A.'s office laid out the alleged crime a short time ago.
(BEGIN VIDEO CLIP)
STEELE: Mr. Cosby made two sexual advances at her that were rejected. On the evening in question, Mr. Cosby urged her to take pills that he provided to her and to drink wine. The effect of which rendered her unable to move and to respond to his advances, and he committed aggravated indecent assault upon her.
(END VIDEO CLIP)
[11:25:02] BERMAN: Again, just to remind our viewers here, you've heard a lot of charges issued toward Bill Cosby over the last year or two, but this is the first time, just today, where he's been criminally charged with anything.
So joining me now on the phone is criminal defense attorney, Tom Mesereau, best known for defending Michael Jackson in his 2005 child molestation trial.
Tom, thanks so much for being with us. The charge here is aggravated indecent assault. In order to prove the case, the prosecutors must prove what?
TOM MESEREAU, CRIMINAL DEFENSE ATTORNEY: Well, first of all, proof is the issue. Yes, these are nothing but allegations. They're nothing but charges. The prosecutor gives a press conference and speaks as if everything's been proven. Nothing has been proven. And it's a long way before they prove every element of the charged crime beyond a reasonable doubt.
They're going to have to prove beyond a reasonable doubt that this woman was drugged against her will, which I just can't believe happened. They're going to have to prove beyond a reasonable doubt that a man his age wanted to have sex with her while she was unconscious and under drugs.
It doesn't make any sense to me. I think this woman is going to be thoroughly investigated. I think her allegations are going to be dissected bit by bit by his defense team, and she's going to be subjected to withering attacks on the witness stand.
This case is far from over. These are nothing but allegations. He's presumed innocent, and he will continue to be presumed innocent until something is proven beyond a reasonable doubt.
BERMAN: Well, the criminal case is far from over. The criminal case, in fact, has just begun over the last few hours. But there has been this civil case out there for some time and a civil settlement in which there was a deposition.
You say things are not proven, but there are facts that have been testified to by both sides. In this deposition, the details of which were released over the summer, Bill Cosby does admit having this contact with her.
MESEREAU: Well, you know, this is deja vu, John. I mean, when I took over the Michael Jackson defense nine months before his criminal trial, he fired his lawyers and asked me to take over, all anybody was talking about in the media was he paid $20 million to one person. Then they said he paid $2 million to another person.
The question is, why did the celebrity pay money? Sometimes it's not with any admission of wrongdoing. Sometimes it's designed just to end the whole thing and get them out of the media and stop the problems that it causes for they and their family.
When we went into trial in that case, the judge, to my surprise, allowed the prosecution to bring in the fact that Michael Jackson had settled his case. Again, one $20 million, one for $2 million. They said that other young men had made all kinds of allegations, and he was acquitted on every single count. Ten felonies and four misdemeanors.
BERMAN: But, Tom --
MESEREAU: So just because Cosby wanted this thing to end doesn't mean it's an admission of guilt.
BERMAN: But, Tom, in this case we're not talking about the monetary settlement. What I'm talking about is the fact that in this deposition, Bill Cosby says that they had this contact. It's not sex. I don't know that we have an admission of sex, per se, or intercourse is what I should use here, but, you know, there is this admission that there was some kind of sexual contact.
MESEREAU: Well, again, it's deja vu because in the Michael Jackson case, the media was waving the Bashir documentary where they claimed that he said there's nothing nicer than to, you know, sleep in your bed with a child is what the media was claiming. There was a lot more context to what he said. He denied any wrongdoing whatsoever. And I think there's probably going to be a lot more context to what Mr. Cosby said.
And my understanding is he denied any sexual assault or any wrongdoing. So you can't just take snippets out of an interview and say this is going to get him convicted. I've seen the opposite happen.
BERMAN: Certainly he has never admitted to assault or wrongdoing, no, on the contrary. He suggested it was a consensual act. And won't it come down to that in the courtroom? Won't it come down to the issue of consent if this gets before a jury?
MESEREAU: Well, sure it will. It will come down to the issue of credibility. And remember, this woman sought money and got money. So financial motive can come into the question of bias, what motivates someone to make claims, why were they willing to take money and go away?
There's a lot more to this than meets the eye at the moment. The media's just swarming over this prosecutor's press conference where he made self-serving statements that haven't been proven.
BERMAN: Well, we covered it because he is an elected official. You know, he's now going to be the district attorney of that county. He has been the first district attorney, first assistant district attorney for some time. He's been working on this case for some time. And announcement of the first criminal charges against Bill Cosby given the dozens of allegations that have been made publicly over the last year or two is certainly an interesting and notable event. I think you will agree that the fact we're covering that, you know, is worthy.
Tom, you have defended cases like this before. You have not prosecuted a case just like this before, but give me the other side here. How would you prosecute this?
MESEREAU: Well, I don't like to tell people how I would prosecute someone. I'm a defense attorney. And again, it's all deja vu. They said all these young men were coming forward to show that Jackson had an modus operandi.