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Why Bill Cosby may not spend any time in prison

Based on his conviction this week on thr...

Posted: Apr 27, 2018 8:44 PM
Updated: Apr 27, 2018 8:44 PM

Based on his conviction this week on three assault charges, comedian and TV star Bill Cosby could be sentenced to 30 years in prison.

But legal experts said the 80-year-old certainly will spend less time than that behind bars, and there's a very real possibility that he may not ever be incarcerated.

Why? Well, it's mostly to do with his defense team's plan to appeal the guilty verdict -- likely on the grounds that the decision to allow five other accusers to testify in the trial unfairly prejudiced the jury.

Cosby's attorney, Tom Mesereau, will probably ask the court that his client be given home confinement during the appeal, which could take months or even years, CNN legal analyst Joey Jackson said.

"I think he'll ask the court and do whatever he needs to, to have his client remain out at liberty until these issues are decided, whether it was appropriate to allow all those accusers to testify, and how prejudicial and unfair would that be," Jackson said.

The decision on Cosby's bail is up to Montgomery County Judge Steven T. O'Neill, who oversaw the case. His prior rulings suggest he may allow Cosby to remain on home confinement.

On Thursday, O'Neill dismissed the prosecution's plea to revoke Cosby's $1 million bail and remand him to jail.

"I'm not simply going to lock him up right now," the judge said, citing his age and his track record of appearing at every hearing for two and a half years.

"You are making a very big deal of something where there is a very high bail and he has appeared at every appearance," O'Neill said.

For now, Cosby is not permitted to leave his Pennsylvania home. If he does leave the state for another home, it would have to be arranged ahead of time and he would have to wear a GPS monitoring device, the judge ruled.

If O'Neill does allow Cosby to remain free during appeals, and the legal action lasts for years, then there's a question of whether the comedian's age and health will make that sentence moot.

What his team is likely to appeal

Cosby's appeal is likely to focus on the five "prior bad acts" witnesses who testified that Cosby drugged and assaulted them in the 1980s. Prosecutors said these witnesses showed that Cosby had a common pattern or scheme in his assault of Andrea Constand.

Comments on "Good Morning America" Friday by Cosby representatives Ebonee Benson and Andrew Wyatt previewed some of the possible appeal arguments. Benson and Wyatt, who are not attorneys, said that the "prior bad acts" witnesses unfairly prejudiced the jury on issues that were not related to the actual charges.

"They also had a huge amount of prejudice and bias by having five women also testify to crimes which he was not on trial for," Benson said.

"These women have no evidence. They went to no authorities," Wyatt said. "(Prosecutors) parade these five distracters in to tell stories and talk about the drug habits they had."

But Michelle Madden Dempsey, a criminal law professor at Villanova University, said she thought Cosby's attorneys had a very weak case on these questions.

"Was it prejudicial to Cosby's case in the sense that it hurt his chances of getting an acquittal? Sure. But it needs to be unfairly prejudicial (for a successful appeal)," she said.

Dempsey said these witnesses had clear probative value, which means they were useful evidence to prove something important in the trial.

"So did it hurt (Cosby's) case? Of course it did. But that's what evidence of guilt does to guilty people. It hurts your case," she said. "I think he's got a very weak appeal with respect to the other acts witnesses."

Why he'll get a reduced sentence

Though Cosby faces a maximum of 30 years in prison, Montgomery County District Attorney Kevin Steele indicated he would not press for that sentence.

"He was convicted of three counts of (indecent assault), so technically that would be up to 30 years. However, we have to look at a merger of those counts to determine what the final maximum will be," Steele said.

Legal analyst Areva Martin said the judge's rulings so far suggest he will give Cosby a much reduced sentence.

"I think the fact that the judge yesterday allowed him to walk out of that courtroom, did not remand him immediately to jail, gives us a sense about what this judge is likely to do when he gets to the sentencing hearing," she said.

Judges can take any number of mitigating factors into consideration when issuing a sentence, she explained.

"He will be able to take into consideration Cosby's age, the status of his health, the philanthropic work that he's done over the last several decades, the fact that this is his first criminal conviction -- all of those will be factors that the judge can take into consideration when sentencing him."

A sentencing hearing has not yet been scheduled.

'Essential he spend time in jail'

Some women who say they were also assaulted by Cosby believe he should spend time in prison.

"I believe that it's essential he spend time in jail and it wouldn't break my heart to see him spend the rest of his life in jail," Janice Baker-Kinney said Friday.

But ultimately, the length of his sentence would not change his guilty conviction.

"Whether he ends up serving time in jail or if he dies during the appeals process, that doesn't remove the fact that he has been convicted," Dempsey said. "That's definitely an important moment in history."

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