Retired Judges: Cosby Should Get Probation

Bill Cosby
Cosby insists he is not guilty, says trial was a sham

Comedian Bill Cosby faces as much as 30 years in prison – 10 years for each of the three counts of aggravated indecent assault a jury convicted him of.

The comedian and his legal teams have all been critical of Montgomery County Judge Steven T. O’Neill, but if O’Neill follows the guidelines that two retired judges have laid out to NNPA Newswire, Cosby might never see the inside of a prison cell.

“There’s a term called aged-out when you believe a person is much older, a senior citizen in his 80’s and handicapped and he’s basically aged-out in the sense that he probably won’t commit this crime again,” said retired Delaware Judge Robert Young.

“Of course, if the guy is 85, in a wheelchair and shoots people, the wheelchair won’t stop him from shooting folks again,” Young said.

Cosby turned 81 over the summer and is legally blind. He required the regular assistance of handlers and often during court proceedings when he wasn’t aware that no one was near him, Cosby was seen mistakenly conversing with a lawyer or assistant who had departed.

Young’s theory on aging out is not new.

Recently, a 76-year-old Lewiston man was reportedly charged with stabbing a woman to death. Albert Flick had a murder conviction and nearly 40-year pattern of attacking women, but Portland Superior Court Justice Robert E. Crowley disregarded arguments by Flick’s probation officer and a prosecutor who said Flick should serve an additional four to five years because his extremely violent behavior showed no signs of abating, court records show.

“At some point Mr. Flick is going to age out of his capacity to engage in this conduct and incarcerating him beyond the time that he ages out doesn’t seem to me to make good sense from a criminological or fiscal perspective,” Crowley said.

Further, a study published in the Journals of Gerontology: Series B in 2000 found that in Pennsylvania courts, offenders in their 60s were 25 percent less likely to be sentenced to prison than those who were in their 20s, and their sentences were eight months shorter on average.

Those who were in their 70s got an even sweeter deal — they were 30 percent less likely to end up behind bars than 20-somethings, and those who were incarcerated served 13 months less on average.

More recently, a study by Arizona State University researchers, published in 2014 in the journal Criminal Justice Studies, similarly found that in the federal court system, judges gave older offenders a “senior citizen discount” when it came to jail time.

Legal analyst Areva Martin said that O’Neill’s rulings so far suggest he will give Cosby a much-reduced sentence.

“I think the fact that the judge 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,” Martin 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.”

Another judge – who retired from the bench in Pennsylvania – said O’Neill should either sentence Cosby to probation and community service and, or, allow the comedian to remain on house arrest while he goes through the appeals process.

“What’s the harm? He’s fulfilled all of his bail requirements with no issues and, for a high-profile person, that’s really good,” said one Pennsylvania judge who handled criminal cases for 37 years.

The judge spoke only on the condition of anonymity because he said he didn’t want O’Neill to believe he was attempting to instruct him.

In April, Cosby was convicted of aggravated indecent assault from an incident that occurred more than 14 years ago with former Temple University employee Andrea Constand.

Constand alleged that Cosby gave her pills – which court testimony revealed to be Benadryl tablets – and he proceeded to touch her under her pants.

Cosby has maintained that the touching was consensual and that while he fondled Constand, she was rubbing his penis.

O’Neill greatly limited the testimony of a key witness who once dated Constand. In sworn statements, the witness claimed that Constand’s mother put her up to going against Cosby because she despised homosexuals and African-Americans.

Constand reportedly has come out as gay and Cosby, of course, is Black.

“What they have done is disgraceful,” Robert Russell, the key witness, told YC News in Philadelphia.

“I’ll never forget when she told me she’d like to see all niggers gathered together and killed. That is genocide. She spoke like Adolf Hitler. I realized what I was getting involved in and got out of it like a bat out of hell. That family was dark and I don’t want anything to do with them.”

Russell – who started to say he was “more than a close friend” of Constand’s before he was cut off by an objection – took the stand for a mere five minutes to testify that while he knew her in Canada in 2001, she was pursuing a career in broadcast journalism.

“She despised Black people – she didn’t want any Black men or women in her house,” Russell said.

Constand allegedly had a brief relationship with NBA star Steve Nash, which was cut short after he was photographed with a Black woman that Constand’s mother referred to as a “bimbo” compared to her daughter.

“She said if she ever saw her daughter in an interracial relationship she would stop her and if she couldn’t, she’d make something up,” Russell said, referring to Gianna Constand, the mother of Andrea. “It all goes back to her very first boyfriend. Her mother put all her hopes in Steve Nash — her mother was devastated when that photo came out with him and a black woman.” Russell said.

To which the retired Philadelphia judge said could be considered at sentencing.

“If [O’Neill] knows all of this, then that’s where fair play comes in and I agree, that the defendant should either be allowed to remain on house arrest while he appeals or be given a sentence of probation,” the judge said, before offering what he might consider.

“First, I’d probably have an in-[chambers] conference with the defendant, his attorneys and the prosecutors and I’d say, ‘Do you think you can come to an agreement on an appropriate sentence?’ Hopefully, they’d agree, otherwise, if the facts are correct, then I believe I’d be inclined to go with a no-jail sentence here,” the judge said.