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The Conviction of Bill Cosby

The Conviction of Bill Cosby

Do I think the trial was fair? I have grave doubts.

https://youtu.be/06d6Q3gDqWs

On Thursday Bill Cosby was found guilty of three counts of aggravated indecent assault against Andrea Constand for acts committed in 2004.

The MeToo movement is happy, flooding Twitter with tweets such as these:

Do I think Cosby is guilty? Most likely.

Do I think the trial was fair? I have grave doubts.

The legal process is intended to make sure cases are decided on facts and that the presumption of innocence is preserved despite the fog of emotion and the witch-hunt mentality that can prevail in many cases. In our system of justice—not vengeance, but justice—it is considered more important to preserve these safeguards than to sentence every wrongdoer.

And that is why the Bill Cosby trial disturbs me.

The jury in his first trial was hung, and that was almost certainly for two reasons. The first was that only one extra accuser was allowed to testify in that trial compared with five in the subsequent trial. The second is that the MeToo movement—which gathered steam between the two trials—has created a storm of vengeful feeling and a widespread assumption of guilt for anyone such as Cosby, who is a celebrity in show business with multiple accusers.

This article was written in March 2018, shortly after the judge in the second trial had ruled that five other accusers would be allowed to testify:

Ordinarily, prosecutors cannot introduce evidence or accusations of prior bad behavior because a jury is supposed to focus most substantially on the facts of the single case before it. But such evidence is sometimes permitted when it can be argued that the conduct is so similar it demonstrates a common scheme or plan, a kind of unique signature of the defendant.

Judge O’Neill said in his ruling that he had carefully weighed the probative value versus the risk of unfair prejudice in his decision. Nevertheless some experts said it created an opening for Mr. Cosby’s lawyers to take any conviction to appeal.

I would think it does. Also:

The prosecution will now be able to use the extra testimony to fill in the gaps that emerged in the account put forward by Ms. Constand, such as the uncertainty in identifying precisely when the incident occurred. The defense had also confronted Ms. Constand about why she took a year to report it to the police and why she continued to have contact with Mr. Cosby after what she described as an assault

There is another problem with the testimony of the five women: their claims concern actions that are alleged to have occurred during the 1980s, apparently beyond the relevant statutes of limitations. There’s a reason for such statutes, which is that with the passage of so much time it becomes nearly impossible to get reliable evidence for a host of reasons, including but hardly limited to the deterioration of memory.

And yet, unlike in the first trial, the women were allowed to testify in the second trial:

Cosby is not on trial for the incidents [the five] described — something the judge had to remind the jury — but the five women were supposed to serve as “prior bad acts” witnesses who could establish Cosby had a pattern of assaulting women…

Some women admitted to confusion about what happened to them decades ago, and that they spent years grappling with their encounters with Cosby. Yet all were adamant about their allegations: They were drugged, they were assaulted, and Cosby did it.

And all of them, prior to their testimony in this trial, had access to the stories from the other women about what Cosby did to them. This gave them ample opportunity to refresh their memories.

I am not saying that these women are lying; as I already indicated, I happen to think it more likely than not that Cosby is guilty. But this is about whether they should have been testifying and whether their testimony established guilt beyond a reasonable doubt or whether it preyed on emotions and the power of MeToo. (If you’re interested in the law related to “prior bad acts,” you can read about it in some detail here.)

Another unusual thing about the Cosby trial is that the prosecution made use of the “doctrine of chances,” a fairly obscure and not-universally-accepted legal principle. Here’s a discussion of that subject (as well as other related issues) from a few weeks ago with Wes Oliver, associate dean at the Duquesne University School of Law:

Our normal rules say we don’t consider a defendant’s bad character. The doctrine of chances is a very rarely invoked exception. It says that we allow character evidence—if you’ve got enough instances….

The fact is, we still want the jury to make the decision on the basis of its interpretation of her credibility versus his. We don’t want them to convict him of assaulting Andrea Constand because they believe he raped 50 other people…

…what new has happened with the case since [the first trial]? The answer is nothing.

What new has happened with society since then? The answer is quite a lot.

It seems to me with the whole #MeToo movement, society seems more willing to believe an accuser, even an accuser of a very important man. It seems to me that there’s less of a need in this case to hear from other accusers than there was at the last trial.

…the role of the judge is not to provide a venue—it’s to provide a fair trial. If that’s the calculation that’s being made, then the judge himself would be putting the thumb on the scale differently as a result of the movement. If that’s what’s happening—and I’m not saying that it is—that would be problematic.

…the doctrine of chances is not universally accepted, by a long stretch, in American courtrooms.

Whether Cosby is factually guilty or not, the way this trial was conducted seems to me to set a dangerous precedent.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

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Comments

The Mob will have its pound f flesh…

It seems to me I also read somewhere that the judge used the fact that Cosby would moralize in public to justify unsealing testimony in a previous case. I am not a lawyer, but I think the motivation for that ruling was that Cosby had views on certain issues outside of those which black men are allowed to have by the left. I certainly don’t see the legal reasoning behind using his expression of his views on black culture to justify unsealing previously sealed records.

There was also the allowed testimony of the of a prosecution “expert” that any confusion in the “victim” testimony can be considered an expression of trauma thus indicating likelihood that she was indeed victim of something, leaving the defense of no avenue to discredit the prosecution witnesses. (Hey, the fact that their prior testimony was inconsistent was just because they were traumatized.)

Of course, actual neuroscience research contradicts this, suggesting instead that, barring actual trauma to the brain itself, memory of details are actually stronger in cases of trauma. Research generally suggests that memory of details strengthens when attached to strong emotion.

“Heads I win, tails you lose.” Now, how does such testimony square with the Sixth Amendment? Hopefully appellate judges will remember their judicial duties better than the trial judge in this case.

Another case were social justice wins but has to offend actual justice to do so.

    MajorWood in reply to Rigelsen. | April 29, 2018 at 6:20 pm

    The reason people need therapy after a traumatic event is because the brain rehashes those events over and over, thus strengthening the synaptic connectivity of the memory. I would hope that in an appeal that they get an expert in the field of memory to prep counsel. How much lead time did they get that these women would be testifying in the second trial and that their testimony would be qualified as “fuzzy due to trauma.”

nordic_prince | April 28, 2018 at 3:07 pm

Whether or not he actually did that of which he was accused is irrelevant to the media, I think. With all the scandal surrounding Hollyweird, sex cults, Weinstein, etc., they needed a sacrificial lamb. Hence Cosby was put in the crosshairs. Going after someone based on old accusations allows them to sanctimoniously proclaim they’re doing something about their sex scandals while they continue to ignore the perverts who continue to run around and rule Hollyweird.

    notamemberofanyorganizedpolicital in reply to nordic_prince. | April 28, 2018 at 3:12 pm

    So true.

    Those alleged acts were 50 years plus back. (Why don’t they go after Bill Clinton the same way since that only 20 years back??? Is it because Bill is “white?”)

    They also didn’t go after George Takei for the same alleged acts!

    Hyper-Hypocrites, thy name be Leftist, Progressive, Liberal and Democrats!

    DINORightMarie in reply to nordic_prince. | April 29, 2018 at 6:03 am

    I disagree. I think Cosby was their trial balloon, their litmus test, to see if they could topple a powerful person on sexual harassment/womanizer accusations……and it proved to be more successful than even they had hoped.

    Hence, the constant attacks on Trump – the infamous Dossier’s “golden showers” accusations, the #MeToo hysteria, the Strom-y (oops – Stormy!) Daniels nonsense….. Not to mention the AL Senate election, the taking down of an R candidate, using the usual Gloria Allred farce-lawyer, to take a guaranteed R seat and give it to a Dem.

    Yeah, it’s all a tactic applied, using a now tried-and-proven strategy. And Dr. Cosby (Ph.D. in Education) was their first attempt, their experiment…..because he was telling the black community to stop being victims, and work hard like he did, because they CAN succeed, as his life showed, brilliantly.

    (BTW–also another glaring example that racism and hate are alive and well, and they all stem from the leftist zealots in the Dem party, where they will eat their own, sacrifice a person’s life, if they go off the “plantation” they have assigned them to occupy or break away from the script they expect them to follow.)

notamemberofanyorganizedpolicital | April 28, 2018 at 3:09 pm

The Leftist, Progressive, Liberal and Democrats virtually “lynched” Bill Cosby. But then they have lots of experience doing that to them. SNARK!

Back in the day, women knew what Quaaludes were and the effects, one of which involved sex and a daze afterwards. Assumption of the risk perhaps? Regret should not equal lack of consent so that one becomes criminally liable. Of course, no woman could have possibly come on to Cosby. That would be unheard of. No idea about his guilt, one way or the other. If he did look for victims for his lechery it would not be surprising either.

“And all of them, prior to their testimony in this trial, had access to the stories from the other women about what Cosby did to them. This gave them ample opportunity to refresh their memories”

Making it quite likely that they would “refresh” from the claims of other people’s stories. They could discover any inconsistencies and coordinate their testimony, probably with coaching from the district attorney. I could have sworn this kind of thing was considered antithetical to justice, but perhaps I misremembered.

“leaving the defense no avenue to discredit the prosecution witnesses”

Inconsistency in prosecution testimony is evidence of your guilt, and inconsistency in defense testimony is evidence of your guilt. What’s not to like?

Interestingly, I’ve never seen “inconsistency proves truth” used improve the veracity of a man’s testimony or as proof of a man’s innocence.

A question for someone familiar with the law. The article says he was tried for something that happened in 2004. How long is the statute of limitations? If I had to prove anything about something that did or did not happen 14 years ago I would be off to jail.

    Milhouse in reply to Cat Herder. | April 28, 2018 at 11:35 pm

    In Pennsylvania, for major sexual offenses, it’s 12 years; he was indicted just before the statute was about to expire.

      Observer in reply to Milhouse. | April 30, 2018 at 10:10 am

      That depends on which version of Andrea Constand’s story is believed. She initially said the alleged assault occurred in March of 2004, but later changed her story when Cosby’s travel and phone records from around that time showed that it was unlikely to have happened when she said. In other versions she moved back the date to either January 2004 or December 2003. That was significant because if it happened before December 30, 2003, then it was outside the limitations period (Cosby was charged on 12/30/2015). And that raises the question of how the jury could find, beyond a reasonable doubt, that the assault happened within the limitations period, when Andrea Constand herself was not sure when it occurred.

Cosby strayed too far from the plantation. He had to be taken care of, before he infected more black people. I look for the same thing to happen to Kanye West.

All this concerns me, as a mom. I have 2 sons and the presumption of guilt and prove your innocence worries me greatly!

Then on the flip side, my daughter isn’t safe in a women’s bathroom either!

What a time!

the rockers from the past might want to start worrying, the ‘groupies’ from their past could come back to haunt them.

“I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones”

Whether Bill Cosby is guilty or innocent has still not been decided. Why? Because the judge changed the rules for the second trial and did so in a way which is contrary to legal precedent.

In the first trial, evidence of prior bad acts was not allowed to be presented for reasons that the acts were not proven, but only allegations. Well, in the case of their presentation at the second trial, they were still only unproven allegations. They should not have been allowed to be presented in the second trial. But, they were. This opens a huge door for appeal. And, it is reasonably likely that an appellate court would order the conviction overturned. You can’t change the rules to benefit one party or the other.

As to Cosby’s guilt? That has to be proven in a court of law following the established judicial rules. How many time did various organized crime figures walk because the prosecution could not prove its case? We have rules for a reason.

    Ragspierre in reply to Mac45. | April 30, 2018 at 9:57 pm

    Poor old nutter…

    “In the first trial, evidence of prior bad acts was not allowed to be presented for reasons that the acts were not proven, but only allegations. Well, in the case of their presentation at the second trial, they were still only unproven allegations.”

    Everything adduced in a trial is “an unproven allegation”. The purpose of the trial is to give the finder-of-fact the power to determine what has been proven…BY the allegations made and their judgment on those allegations.

    I’ll remind everyone that testimony IS evidence. That’s why we use it constantly in courts. And juries make determinations on it every day, all over the land.

    We’ll see what the appellate courts have to say.

    Ragspierre in reply to Mac45. | April 30, 2018 at 10:07 pm

    I’ll also note in passing that, GENERALLY, prior convictions are not admissible in criminal cases during the guilt or innocence phase (or civil ones). They’re considered too prejudicial and not dispositive of the charges in the instant case.

    HOWEVER, there are some important exceptions. Not being a criminal attorney, I could be mistaken, and some jurisdictions may vary, but if character evidence is introduced by a defendant, the door is opened to counter it. Also, the assertion of the existence of a “pattern and practice” can permit evidence to be presented regarding what the defendant has done in the past, and how it would be causally linked to the allegations at bar.

Subotai Bahadur | April 28, 2018 at 11:13 pm

1) I also tend to believe he is guilty, but I readily admit that I have not followed the trial in any detail.

2) For quite some time the actual guilt or innocence of anyone has had a smaller and smaller impact on either the decision to charge or the verdict at trial. Political correctness rules.

3) One characteristic of our times is that various protected classes are coming into conflict with each other, and fighting out who has primacy. Right now, being female gives you a leg up on the victimhood ladder over being black.

4) You can bet, that in the absence of an objective rule of law, that there are a whole bunch of formerly immune protected classes whose pucker factor is being measured on the Moh’s Hardness scale.

How in the (censored) can you cross-examine somebody who is testifying to something that happened over twenty years ago, and who has been coached (yes, I’ll use the word) by the prosecution until their story is glossy and flawless.

I’m hoping the appeal flips the conviction because of the judge’s accepting of the witness testimony from beyond the statute of limitations (which is there for a reason).

That’s not to say I think he’s innocent. No, I would guess that he has been doing things similar to what he is accused of. But that’s a guess, not guilty beyond a reasonable doubt.

I don’t see how it’s possible to try someone for a crime other than murder that took place over 10 years ago. This is especially true when the women was available to talk for these years.

    randian in reply to ConradCA. | April 29, 2018 at 12:15 am

    Removing the protection of a statute of limitations for sexual assault allegations was a major goal, mostly accomplished, of women’s advocacy groups. According to them women should not have the burden of making timely allegations. The defendant likely having long since lost any evidence proving innocence is irrelevant.

      Milhouse in reply to randian. | April 29, 2018 at 9:49 am

      Where has it been accomplished?

        randian in reply to Milhouse. | April 29, 2018 at 10:16 am

        17 states, including (no surprise) California have eliminated their statute of limitations for rape. Kentucky, Maryland, North Carolina, South Carolina, Virginia, West Virginia, and Wyoming have eliminated their statute of limitations for all felony sex crimes. Some states that haven’t entirely eliminated their statutes of limitations for sex crimes have extremely long reporting timeframes, 20+ years or more, which is little different from not having any limit at all if you’re a defendant.

        Some states have a DNA evidence exception to their statute of limitations. In Arkansas and Utah, for example, if DNA evidence leads to the identification of an offender then there is no statute of limitations.

‘…The second is that the MeToo movement—which gathered steam between the two trials—has created a storm of vengeful feeling and a widespread assumption of guilt for anyone such as Cosby…’
But this is pure speculation. I’ve seen no evidence that either jury was biased. Different people can come up with different answers. There is no reason to suggest that justice wasn’t served or to accuse the jury of bias without evidence.
‘I happen to think it more likely than not that Cosby is guilty.’
Is that all? I’ve honestly tried to come up with a plausible scenario in which Cosby isn’t guilty and as far as I can tell, there isn’t one. That’s more than reasonable doubt. That’s getting close to proving it beyond a shadow of a doubt.
‘There’s a reason for such statutes, which is that with the passage of so much time it becomes nearly impossible to get reliable evidence for a host of reasons…’
I’m pretty sure the women would not have forgotten.

    Mac45 in reply to Steve D. | April 29, 2018 at 12:57 pm

    “‘…The second is that the MeToo movement—which gathered steam between the two trials—has created a storm of vengeful feeling and a widespread assumption of guilt for anyone such as Cosby…’
    But this is pure speculation. I’ve seen no evidence that either jury was biased.”

    While there is no evidence that either jury was biased, it is entirely possible that the #MeToo phenomenon could have led to the judge’s decision to allow the testimony concerning prior bad acts to be admitted. Also, it is a common characteristic for human beings to assume that something is true if enough people claim it is, even absent conclusive evidence. This is the basis for the “where there is smoke there is fire” saying as well as the Big Lie.

    The whole point of having judicial rules is make the trial process as objective as possible. When you enter character testimony into the evidenciary part of a judicial proceeding, then you are undermining that goal. In this case, it swung the advantage to the prosecution at the expense of the defendant. This trial did not prove Cosby guilty beyond a reasonable doubt, but only that it was more likely than not that he committed the charged offense [if you believe the accuser, of course]. It ended up being more of a civil procedure than a criminal one.

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