As we discussed many times during the Derek Chauvin murder trial, one must distinguish between two issues in any criminal case, issues that can be hard to keep discrete because they are so closely related. They are: (a) is the defendant guilty, and (b) did the defendant get a fair trial?
Most people, especially non-lawyers, are consumed by the first question. But our justice system is the sine qua non for a free society because, for a conviction to be valid, the answer to both questions must be yes, and established as such convincingly. That is something we all appreciate more when we, or someone we care about, is accused of a crime.
Which brings us to the case of Bill Cosby and the stunning court decision Wednesday to overturn his sexual-assault convictions and release him.
There is really no doubt that Cosby is guilty of being a sexual predator. The problem is that he was gulled into acknowledging this fact by a prosecutor, who had assured him that, the case against him being weak, he would not be charged. The hardest thing about being a prosecutor is that your two most basic responsibilities — proving the case and vindicating the accused’s constitutional protections — are in tension with each other. In this instance, the Pennsylvania prosecutors failed to respect the latter in pursuit of the former.
In a nutshell, relying on the assurance by the Montgomery County district attorney that he would not be prosecuted, Cosby agreed to testify in a civil case brought against him by Andrea Constand, then a Temple University employee whom he had sexually assaulted in 2004. Cosby made damaging admissions and paid a steep settlement.
Subsequently, political pressure to charge the actor had intensified because numerous women made similar allegations that he abused them. The alleged assaults followed a pattern in which Cosby would drug the women, rendering them unable to resist. Meantime, Montgomery County had gotten a new district attorney. In this spotlight, the new prosecutor reneged on his predecessor’s non-prosecution assurance. The state rationalized that, even if Cosby had in fact been assured of non-prosecution and had acted on that commitment to his detriment, a formal immunity agreement had not been perfected before a court.
Cosby was indicted in 2015 just days before the twelve-year statute of limitations was to lapse. In 2018, he was convicted on multiple counts of sexual assault. He would later lament that the #MeToo movement sealed his fate, but the charges had been brought against him before the Harvey Weinstein storm broke.
Although Cosby’s convictions were upheld by an intermediate appellate court, Pennsylvania’s highest court has now thrown them out. Two things rankled the commonwealth’s supreme court about the unfairness of the proceedings.
First was the non-prosecution assurance. Even if the state was correct that every formalistic “i” required to perfect an immunity agreement was not dotted, fundamental fairness called for prosecutors to honor the assurance, on which Cosby relied. Their failure to do so violated basic due process.
The second problem, a common one, involved the state’s resort to so-called similar-act evidence. To convict him of abusing Constand, the state offered, and the trial court permitted, testimony from five other women who recounted that Cosby had carried out the same kinds of attacks against them, in the same manner — i.e., sexual assault after drugging.
The criminal law is ambivalent about similar-act evidence. On the one hand, the government must prove beyond a reasonable doubt that the accused committed the specific crime that is charged in the indictment. A defendant may not be found guilty because the jury believes he has a propensity to commit crimes — that, even if the evidence of the charged rape is weak, the defendant is probably guilty because he is known to have committed other rapes. On the other hand, though, evidentiary rules permit the admission of similar-act proof for purposes other than suggesting propensity — such as to prove that the defendant’s conduct fit an established pattern that, like a signature, identifies him as the culprit. Uncharged similar-act evidence, however, must not be permitted to overwhelm the proof of the indicted criminal act; the latter must be established by convincing evidence.
In Cosby’s case, the prosecutors heavily relied on the similar-act evidence, for the same reason that the first prosecutor decided against indicting Cosby — the case was weak because of the lapse of time and lack of corroboration (the classic “he said, she said”). In fact, the first jury to hear the prosecution’s case hung. Cosby was convicted only after a second jury was inundated with similar-act testimony and informed that he had paid a nearly $3.4 million civil settlement . . . in the case he testified in only after the first prosecutor promised not to indict.
There is a good chance that the supreme court would have thrown out the conviction based on overreliance on the similar-act evidence. In the end, the seven-member tribunal did not have to grapple with that question. The initiation of the prosecution after the state had committed not to prosecute was a due-process violation that could not be cured.
It would be a mistake to look at this outcome as justice denied. Cosby’s legacy is shattered. He is said to have paid millions of dollars to settle other cases. He is an 83-year-old man who did three years in prison on a case that should not have been brought. And he will continue to be hounded as complainants strategize on whether other charges or claims can be brought. He will have no peace, a problem he brought on himself by his atrocious actions.
Cosby’s record of sexual assault is said to stretch back over half a century. He was never charged because it was a different world then, in which women lived with the anguish that coming forward would ruin them rather than hold their assailants to account. By the time things changed, the complaints against Cosby were barred or fatally weakened by the passage of time. In the future, we can reasonably expect that there will be few Bill Cosbys. That may not feel like justice today, but it is progress.