The Metro Perspective

So Bill Cosby is a free man.

On June 30, 2021, the Pennsylvania Supreme Court vacated Bill Cosby’s sexual assault conviction and barred the Commonwealth from ever prosecuting him again for that crime. And the world is not happy.

I am not happy, either, but probably for different reasons than the rest of you.

I have been an attorney for nearly twenty years and I clerked for a trial court judge for three years before that, so I have a certain perspective on legal issues. But I also have a well-refined bullshit detector and it has been blaring for the past day since I read the court’s opinions.

First of all, let me say that I think it is worthwhile to at least skim through the actual opinions when we are talking about court rulings. The news does a decent job of summarizing legal matters, but there is nothing like conducting your own research because you will bring your own experience and perspective to it. If you want to read these opinions, you can find them here. Of particular interest to me is the “Concurring and Dissenting Opinion.”

But you came here to read about why this ruling doesn’t sit right with me, so let me get to it.

According to the facts introduced at trial, and I’m summarizing and simplifying a bit here, Bill Cosby gave alcohol and some unidentified drugs to a woman, then began sexually assaulting her when the drugs kicked in and she was unable to defend herself.

The woman waited a while to confront Cosby and, ultimately, to report the assault to the police. After an investigation, the district attorney decided that, because there was such a long delay from the time of the incident until the time she reported it and because there was no evidence other than her testimony, there was no way he would be able to carry his burden of proof, so he decided not to bring charges against Cosby.

Let me pause for a moment and share some realities of criminal prosecutions. Sexual assault cases are among the most difficult to prosecute. Witnesses often do not want to relive the horror of what happened, so they will sometimes refuse to testify making conviction almost impossible. When they do, if there were drugs or alcohol involved, their recollection may not be clear, so it is easy for a good defense attorney to cast doubt upon their recollection. That reasonable doubt is enough to acquit the defendant in many cases. It absolutely sucks and I wish there were a better way of holding assaulters accountable, but there just isn’t right now.

Having said that, you still need to try. So it’s just he-said v. she-said? Fine. The victim’s recollection is legally sufficient evidence to bring a case to trial. The district attorney should have done so and let the jury decide. If the jury convicted where there really wasn’t sufficient evidence to convict, there is a remedy available to the defendant.

Basically, in my opinion, District Attorney Castor was just being a male and operating under the assumption that a woman can’t be trusted. Maybe he knew that Cosby was guilty and just assumed that no jury would convict, but he still placed his conviction stats over justice and that is weak and wrong. He had an obligation to the people of the Commonwealth of Pennsylvania, to sexual assault victims everywhere who starve for recognition and justice, and to this victim to prosecute Cosby.

And guess what? If he did, none of this would have happened.

As it happens, he took the coward’s way out and refused to bring charges. However, he did want the victim to be able to have her day in court and receive some sort of remedy for what happened to her. So he informed Cosby that Cosby would not be prosecuted for his crimes, either now or in the future. He also issued a press release to that effect.

So why is that significant? The Fifth Amendment’s protections against self-incrimination allow someone to refuse to testify in any court proceeding if there is any threat of prosecution. Even if it is a civil lawsuit, someone can refuse to testify because their testimony under oath in the civil suit could then be used against them in a criminal proceeding. If the prosecuting authority has publicly announced that someone is free from the threat of prosecution, the Fifth Amendment no longer applies and the individual can be compelled to testify in a civil suit.

In this case, the DA knew there was a pending civil suit against Cosby and knew that the victim could get something from Cosby if he had to testify in it, so he opted to remove the threat of criminal prosecution so Cosby would have to testify in the civil suit.

And Cosby did. He sat for four depositions. And he said some pretty incriminating stuff in those depositions before the civil suit was eventually settled.

Before I move on, let me just say that I am not a fan of this kind of manipulation. I can’t win, so I’ll manipulate the system so someone else can. But there is nothing legally or ethically wrong with it, so I guess I shouldn’t complain. Bill Cosby is a bad man and deserves to be held accountable for his actions, so I’m not that upset about it in this case. My only concern is the precedent that could be set if we engage in this type of shady dealing.

Fast forward several years and DA Castor has moved on to a different political office. There is a new DA and she has revisited the case file. Why? Who knows. My opinion, though? Because Bill Cosby is a big celebrity name who has been in the news because of other allegations of sexual assaults and the #metoo movement is in full swing and powerful men are finally being held accountable for their actions. This would be a great feather in this DA’s cap if she can be the one who put Bill Cosby in jail. I mean, imagine her notoriety if she prosecuted the great Bill Cosby!

Largely on the strength of those four civil depositions and the testimony of other women whom Cosby sexually assaulted, DA Risa Ferman filed charges against Cosby and the news hit the national spotlight in a huge way.

Then she ran for judge.

The former DA reached out to her and told her that he had told Cosby’s legal team that Cosby would not be prosecuted, so she shouldn’t do this. She did it anyway.

Then she ran for judge.

A third DA was in office when Cosby was eventually convicted and here we are today.

Once a state has taken official action to represent that an individual is free from the risk of prosecution, especially when they do so with the specific intent that the person will then incriminate themselves in a civil lawsuit because the Fifth Amendment no longer applies, they cannot then turn around and use the evidence obtained in that civil suit against the defendant in a subsequent prosecution. That’s just dirty pool.

The thing that pisses me off the most about this case is not the result, because I believe the result is correct. The court did not say Cosby was innocent, it just said that prosecutors cannot play dirty like that to trick someone into implicating themselves in a crime. The thing that pisses me off the most is that it never should have gotten to this point.

Bill Cosby is a bad person and he deserves to be eating Jello pudding in a prison cell for the next 3-10 years. But the prosecutors have to do it the right way. And they could have!

A victim’s testimony is enough for a conviction. He-said-she-said may not be the strongest evidence, but it is still evidence and it is enough to support a conviction. If the DA had not been able to secure a conviction, then the victim still could have deposed Cosby in a civil suit because he could not be prosecuted for the same crime twice. The victim still could have gotten at least some recourse. It’s wholly inadequate, but it is better than nothing. And maybe it would embolden other women to speak out against the rich and powerful men who had victimized them.

DA Castor took the easy way out so that his political career did not have to suffer the humiliation of losing a high profile case like this. And his political career flourished.

DA Ferman used Cosby’s fame and the cultural shifts occurring in America to thrust herself into the spotlight in order to become a judge. And she is now Judge Ferman.

Bill Cosby deserves to suffer for his crimes. His victim deserves retribution for everything she was put through. But wealthy and powerful politicians do not have the right to abuse the system for their own personal and political gain. It is the worst kind of opportunism there is because it allowed a guilty man to go free and a victim to continue to be victimized.

That’s why this result pisses me off.

EPILOGUE

The majority ruled that the Commonwealth was barred from ever prosecuting Cosby for this crime. While I agree that his conviction should be vacated, I do not agree that this is the appropriate remedy. The Commonwealth should be barred from using Cosby’s deposition testimony and any evidence arising from it, but there is still the victim’s testimony. If the DA wants to retry Cosby based upon that testimony, they should be permitted to. The proper remedy is not to completely bar prosecution. It is to strike the inappropriately obtained evidence and send it back for a retrial. That is the position in Justice Dougherty’s concurring and dissenting opinion and I believe it to be the correct position.

I still think Bill Cosby should pay for his crimes.