Dirty pool: On the vacating of Bill Cosby’s conviction

I did write a post about Bill Cosby’s first trial that ended in a hung jury; I did not get a chance to write about the second trial which did result in a conviction. Well, today, the guilty verdict was vacated and Bill Cosby is once again a free man.

“Dirty pool” in the post title refers to what the district attorney’s office did in this case. In 2005 Bill Cosby was compelled to give a deposition in a civil trial which, by its nature, required him to incriminate himself. The DA issued a press release stating that Mr. Cosby would not be criminally prosecuted. Mr. Cosby relied on this when giving the deposition and waiving his Fifth Amendment rights. Obviously, in 2017, the DA’s office went back on its word and proceeded to criminally charge Mr. Cosby anyway.

Back in 2017 I said:

I despise rape, sexual assault, and similar crimes, and those that partake of them. However, I also believe that everyone is entitled to a fair trial and to their day in court when accused.

I still believe that today. Knowing what I know today, however, it is painfully obvious to me that the entire premise upon which Mr. Cosby was tried and convicted was flawed and that there is no way the trial could possibly have been fair. If, as a DA, you give your word you won’t prosecute someone based on their civil trial testimony, you’re legally committed to keeping your word. This doesn’t establish that Mr. Cosby is innocent; if anything, it establishes quite the opposite.

I want to address the argument that this is a “technicality”. I really dislike the use of this term as it is often used to belittle flagrantly (and even egregiously) unfair acts undertaken by district/people’s attorneys (at least, usually). People may call this a technicality, but if you were to reframe it in terms of something happening to them, personally, they would say there’s no way that would be fair to them.

When you’re the accused, there are no “technicalities”. Bill Cosby never should have stood trial in 2017, much less been convicted. This doesn’t excuse what Mr. Cosby did, but it is positively putrid and vile that the district attorneys in question thought it would be okay to go back on their word.

It is most emphatically not okay.

Thoughts on the Bill Cosby trial

For those that missed it, the first criminal trial of Bill Cosby ended in a mistrial after the jury could not agree on a verdict. If you need to catch up: CW39, CNBC, PennLive, ABC News, Wikipedia. (This is by no means an exhaustive list.)

I haven’t said much about this trial, though I have been following it. It should be noted that the allegations go back to early 2004, and charges weren’t filed until 2015 December 15. That’s only a few weeks short of twelve years after the incident. The DA should have known going in that a mistrial due to a hung jury was at least a definite possibility. I would go as far as to say a mistrial due to a hung jury was more likely than not.

I despise rape, sexual assault, and similar crimes, and those that partake of them. However, I also believe that everyone is entitled to a fair trial and to their day in court when accused. I think the trial was fair, given what I heard about it. The defense called only one witness who testified very briefly; this kind of manuever usually means that the defense believes the prosecution did not prove its case. And apparently, to at least one of the twelve jurors, it did not.

The problems with a mistrial due to hung jury quite nearly equate to a defeat for both sides. The prosecution has to begin again with a new trial and the associated expense; the defendant hasn’t been exonerated by a verdict of not guilty, is still quite probably guilty in the eyes of some of the public, and worse, will probably have to face another trial on the same charges. The only time the defendant comes out ahead in a mistrial is if the prosecution decides not to proceed with a retrial. And, that most definitely is not what is going to happen here. From the CNBC story:

[District Attorney Kevin] Steele told the judge he intends to retry the case. He elaborated later at a press conference, saying Constand “deserves a verdict” on the charges. He said he was disappointed about the mistrial but insisted he has no doubts about the state’s case and that the trial had meaning for victims of sexual assault everywhere.

Maybe I’m reading too much into this, but it sounds a lot like DA Steele will keep retrying the case after each hung jury, until either Mr. Cosby dies, or public outrage reaches the point where DA Steele has no choice but to throw in the towel. Personally, I think DA Steele is missing a big huge hint from the outcome of this first trial. If the second time around also ends in a hung jury,it’s unlikely any jury is going to agree one way or the other. Also, there’s some possibility that a future jury may issue a “not guilty” verdict purely out of spite for DA Steele wasting courtroom time if this case is tried, say, four or more times. The victims won’t like that, of course, but that could be the way the ball bounces. As a criminal case, it is rife with problems: it is based primarily on civil court depositions from around 2005, with one corroborating witness (the others were disallowed by the judge), and very little if any physical evidence. The credibility of Ms. Constand’s memory regarding the events of over a decade ago is probably going to be questioned by at least one juror, if not all twelve jurors on the panel.

This should also be noted, from the Wikipedia article:

In July 2015, after portions of the sealed deposition were released, Cosby released a statement stating that the “only reason” he settled [the civil lawsuit filed by Andrea Constand] “was because it would have been embarrassing in those days to put all those women on the stand, and his family had no clue.”

Put another way, Mr. Cosby settled the lawsuit from Ms. Constand to put it behind him and not have to deal with months if not years of negative publicity. We don’t know how much he paid thanks to the confidentiality agreement, but I would imagine it wasn’t cheap. The settlement of a lawsuit in favor of the plaintiff(s) should not necessarily be interpreted as an admission of guilt by the defendant(s). (However, there are exceptions, particularly cases where a bunch of small settlements can be seen as a defendant’s knowledge of wrongdoing and a refusal to change the tortious behavior, such as Liebeck v. McDonald’s Restaurants more commonly known as the “McDonald’s hot coffee” case.) There are similarities here between the lawsuits faced by Mr. Cosby and those faced by the late Michael Jackson.

The main difference between Mr. Jackson’s legal problems and Mr. Cosby’s is that the former’s criminal charges were resolved on the first trial with an acquittal. Mr. Jackson was also much younger and much farther from the expected end of his life at the time of the criminal trial (though he would leave us way too soon only four years later).

Mr. Jackson also faced and settled a civil suit before he would face criminal charges, and at least from my observations at the time (the suit was settled on 1994 January 1) it was seen as an admission of guilt, which I think is an inaccurate characterization. Mr. Jackson had a lot more to lose from letting the trial drag on in the early to mid-1990s than Mr. Cosby did in 2005, so it’s quite likely he settled the suit just to put a cap on the bad PR he was getting.

So it comes down to this: I hope this is the only hung jury for this case. I hope the next trial ends in an actual verdict, either guilty or not guilty. The circumstances as I see them lean towards an acquittal being the more likely of the two outcomes, simply because of the lack of evidence and the length of time that went by between the indictment and the alleged crime. In addition, I really don’t see what good it’s going to do to send Mr. Cosby to prison at this stage in his life. Within 2 to 3 years of the alleged crime, it would have made at least some sense; in a few weeks Mr. Cosby turns 80. At the trial, the court had to make accommodations for Mr. Cosby because he’s now legally blind. A victory is largely symbolic.

After this first trial ended in a hung jury, it sure smells like they are kicking Mr. Cosby while he’s down. And that’s something I can’t just sit by and watch without saying anything. I say this as someone who is not a particularly strong fan of his work. (The only show of Mr. Cosby’s that I really got into was the revival of You Bet Your Life which lasted around a year in 1992-1993. I’ve seen bits and pieces of The Cosby Show and Fat Albert, but not enough to really form an opinion of either.)

I don’t know what’s worse: drug-induced rape, or trying to sell a rape charge to a jury of twelve over a decade after the incident allegedly happened with very little evidence. Ms. Constand filed the civil suit first; if there had been enough for a criminal case then, why wasn’t one pursued then? If there wasn’t enough for a criminal case then, why does DA Steele think there is now?