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:
— Elizabeth Banks (@ElizabethBanks) April 26, 2018
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.]DONATE
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