Bill Cosby is a rapist. That is clear not just beyond reasonable doubt, but beyond all doubt. No fewer than 56 women have come forward to say Cosby assaulted them, with accusations dating back as far as 1965. If you believe all of those women are lying, there’s a bridge in Brooklyn up for sale.
The fact that there is no dispute Cosby is guilty makes the circumstances that led the Pennsylvania Supreme Court to toss out his 2018 conviction on Wednesday even more outrageous. As near as I can determine, Cosby was allowed to go free because the Montgomery County, Pennsylvania district attorney’s office was either too lazy or too blinded by headlines to actually do the work it should have taken to remove him from society.
Many of the talking heads put the blame on former Montgomery County DA Bruce Castor for cutting a deal with Cosby in which he agreed not to prosecute Cosby for anything he did to Andrea Constand if he agreed to testify in Constand’s civil suit against him. But in looking at the state supreme court opinion, it would seem to me that a good measure of the blame should go to his successors, Risa Vetri Ferman and Kevin Steele.
The rub comes from this section of Castor’s public statement announcing that there wasn’t enough evidence to bring an indictment against Cosby, which is reproduced on pages 11-13 of the opinion. I was struck by the sentence that Castor would “reconsider this decision should the need arise.”
From my non-lawyer’s perspective, about the only ways the door could have been opened to “reconsider this decision” would have been if new evidence came to light independent of the statements Cosby gave in that lawsuit, or if it later emerged that Cosby had lied under oath. On the face of it, the door should have opened wide to another investigation in July 2015, when the nation learned that a decade earlier, Cosby admitted under oath that he slipped Quaaludes to women and performed sex acts on them in the past. After all, conventional wisdom would suggest that you can’t leave someone like that out there, and no expense should be spared to garner enough evidence to put that person away. But from the looks of it, Ferman and Steele didn’t mount such an investigation. That’s the only thing you can take away from the decision to indict Cosby a mere seven months after his civil testimony came to light.
When I first saw news that the conviction had been thrown out, I initially thought this looked like the case of the Blackwater guards who indiscriminately fired into a crowd of civilians in Nisour Square in 2007, killing 14 of them. If you’ll remember, the first attempt to try them went sideways in the waning hours of 2009 when federal judge Ricardo Urbina found that prosecutors relied too heavily on statements the guards gave to State Department investigators in the aftermath of the melee. Since they had to give those statements to keep their jobs, the Fifth Amendment barred prosecutors from using those statements against them at trial. As a result, even though there was no dispute they were guilty, Urbina found that the Fifth Amendment violations were too egregious to let the case go forward.
Teacherken, who is as well versed on these matters as any Kossack who isn’t a lawyer, summed up why Urbina had no other option in a 2010 diary.
It was the obligation of the prosecutors to independently develop evidence of wrongdoing. Otherwise inadmissible evidence can be used usually only if the prosecution can demonstrate inevitable discovery. No attempt to establish that was offered here.
Indeed, the fact that the guards were subsequently convicted and sentenced to lengthy prison terms makes the prosecutors’ actions, and Trump’s 11th-hour decision to pardon them, even more egregious. There was indeed enough evidence to convict them independent of the statements they gave to the State Department—enough to put them away for a long time.
The Cosby case is no different. Given the sheer number of women who have come forward, it defies belief that Ferman couldn’t have started the process of garnering more evidence, and handed that process to Steele when he took over as DA in 2016. The speed with which the indictment came down indicates that they did not do this. I’m reminded of why prosecutors and police tear their hair out at vigilante groups who take it upon themselves to go after suspected sexual predators. They often leave out so many steps that it makes it impossible to prosecute, let alone convict, even those who are manifestly guilty.
Something more fundamental is also at play here. What if you had a case where it wasn’t as clear-cut that the defendant was guilty, and he was granted immunity to give his side of the story—only to be subsequently prosecuted solely based on telling his side of the story, rather than on evidence independent of said telling? No one should want to live in a world where there is even an appearance for that to be possible. As our lawyer friends frequently tell us, appearances matter in court.
Like most Blacks of my generation, I looked up to Cosby as a role model. That’s why I hit the ceiling in 2015, when I read that he actually joked about slipping stuff in women’s drinks. And as more and more women came forward, it was clear to my mind that he was guilty. But good grief, if you’re going to put someone away, do the work necessary to ensure he stays away. Ferman and Steele didn’t do this—and they owe us an explanation for why they didn’t do this.
