If you hadn’t been following the details of the second Bill Cosby trial, you might be interested to read an analysis from Norm Pattis. It is a quick way to catch up on the issues remaining in the matter. (Thanks to a reader for pointing out this article; I hadn’t followed the second trial because I assumed that the prosecutors and judge were doing whatever would be necessary to obtain a conviction and avoid a second highly publicized failure.)
Related:
- Press coverage versus in-courtroom story on the Yale rape case (Pattis secured an acquittal for his client)
- timeline going back to the 2004 encounter
- One place where Facebookers dare not go: Bill Cosby Trial Outcome
Unfortunately people are stupid and ignorant how legal proceedings work, and have no idea of what proving something in a court of law entails. For instance, if you invite me in your house and I take your Faberge egg without permission, can you try to bring criminal proceeding against me, or are you stuck to civil proceeding because you gave me access to your own access and the egg? How can you prove you did not simply gift it to me?
Unfortunately people do not seem cognisant that there are plenty of grey areas concerning sexual behaviour: technically having sex with someone who ‘a reasonable person would consider unable to give meaningful consent’ is rape. Yet I know plenty of couples who had and have sex while off their heads due to drugs and/or alcohol, and neither party would consider that both are in fact guilty of rape.
The only reasonable course of action (I would not even attempt to educate people, it’s a lost cause) is to make it illegal to publish the names of any party involved in a rape/sexual assault trial. Obviously if someone is found guilty that is a matter of public record, but giving any publicity to this kind of proceedings until a legal decision is made looks unhelpful.
None of the issues that Pattis raises seems likely to be a winner on appeal since none of them goes to guilt or innocence. The deposition issue as Pattis describes it sounds like a real loser — that someone assured him his apparent admission of guilt in a criminal case could not later be used against him but that he should have taken the Fifth anyway. Might be bad lawyering in the civil case (though Cos may have controlled that decision) but as described not much of an issue to overturn a criminal conviction.
Giving the deposition was an own goal and it’s unlike that the case will get overturned on appeal based on the judge’s ruling on that point.
The other points Pattis makes are not really appellate issues at all – he is just saying that he doesn’t like the law in that area, not that the judge misapplied the law. As Pattis admits, there is a exception in the law regarding not allowing evidence of prior bad acts for sex cases. The statute of limitations IS longer. The legislature has broad leeway to make the law and the fact that Pattis doesn’t like their choices is not grounds for appeal.
The appeal cannot begin until Cosby is sentenced and so Cosby will have to sit in jail while his appeal makes its way through the courts.
Has anyone noticed that Andrea Constand looks like a man? I know it is not polite to mention these things anymore, but this seems like the elephant in the room.
“For instance, if you invite me in your house and I take your Faberge egg without permission, can you try to bring criminal proceeding against me, or are you stuck to civil proceeding because you gave me access to your own access and the egg? How can you prove you did not simply gift it to me?”
Crimes in America are not prosecuted by individuals but by the State – by committing a crime you offend all of the people and not just the victim of the crime. If I invite you over for coffee, this does not imply that I gave you permission to take everything in my house. If you say that the egg was given as a gift, the jury can assess the credibility of our respective testimonies and the facts and circumstances. Maybe you are my close friend of many years standing and we have often exchanged expensive gifts. Or maybe you are just some random person I met on the internet and have never seen before, in which case it would be strange for me to give you an extremely valuable gift (and with no gift box or card). Maybe there is security camera footage of you slipping the egg in your pocket when I am out of the room. Maybe the fact that you hid your possession of the egg instead of proudly displaying it is relevant. Maybe you tell your drinking buddies that you stole it. Just the fact that you were invited into my home does not end the inquiry.
Jack, if you invite me in your house and I take your stuff, both the police and the DA might just refuse to take any action and tell you to bring a civil suit (where obviously all the evidence will be looked at). That is the problem with ‘the law’. It is complicated and the quick and easy solutions people see often are completely off how the courts (civil and criminal) work. If people did really care about increasing convictions for sexual assaults and rape, maybe the best way of going about this goal would be to explicitly explain how this things are investigated, what makes a credible witness, what kind of actions need to be taken to avoid having some evidence thrown out or ruled inadmissible, and what to expect during a trial.
On a different subject but in the same spirit, if one takes a ‘self defence course’, said course should fist explain what a lawful use of force is (in the jurisdiction) and how to deal with police if force is used. Otherwise people will jump from the pan into the fire.
On the Daily Mail website right now (much better than the NY Times BTW – I am not kidding) they are playing a clip from a juror who went on GMA and said that the deposition testimony was a key factor. “I think it was his deposition, really. Mr. Cosby admitted to giving these Quaaludes to women, young women, in order to have sex with them.”
Cosby made the Animal House mistake – he f’ed up. He trusted the authorities. We double pinky swear that we won’t use this testimony against you. Oops, sorry we lied. You go to jail. Never confess anything under any circumstance ever. They can have you red handed on 10 cameras, but still never admit to anything.
I can tell you that I took ‘ludes a few time in the 1970s (very enjoyable BTW – basically the feeling of being drunk but no hangover the next morning). They were FDA approved medications at the time and I obtained them by filling a prescription at a licensed pharmacy. They did not interfere with my ability to consent (or not consent) to sex or anything else, at least not any more than a bottle of wine would. Basically the deal that Cosby offered to these women, as I understand it, was “here are some pills, they will make you relaxed and then we will have enjoyable sex together.” And the women voluntarily accepted the pills (and the sex that followed). He didn’t slip them in their drinks – they swallowed the pills of their own accord. I just don’t see the sex crime there (putting aside any drug offenses).