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Cosby Walks Free
Bill Cosby is a free man today, and cannot be prosecuted again in Pennsylvania for the same crime. That does not mean he is on track to career or reputational rehabilitation. Far from it; the Pennsylvania Supreme Court opinion that freed him from prison repeated the truly ugly facts of his admissions in the civil case, which admissions now free him from prison. Whisky Tango Foxtrot?* Here, let the judge explain in plain language [footnotes converted to endnotes, emphasis added]:
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM HENRY COSBY JR., Appellant
OPINION JUSTICE WECHT DECIDED: June 30, 2021
In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004 at his Cheltenham residence. Along with his top deputy prosecutor and experienced detectives, District Attorney Castor thoroughly investigated Constand’s claim. In evaluating the likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly. D.A. Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence. The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”[1]
Seeking “some measure of justice” for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination. [2] Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.
D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s reliance upon D.A. Castor’s decisionCosby’s sworn inculpatory testimonywere then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial. We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth. [3]
[ . . . ]
The decision to charge, or not to charge, a defendant can be conditioned, modified, or revoked at the discretion of the prosecutor.
However, the discretion vested in our Commonwealth’s prosecutors, however vast, does not mean that its exercise is free of the constraints of due process. When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity. See, e.g., State v. Myers, 513 S.E.2d 676, 682 n.1 (W.Va. 1998) (explaining that “any change in the duly elected prosecutor does not affect the standard of responsibility for the office”). A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain. For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.
Justices Todd, Donohue and Mundy join the opinion.
Justice Dougherty files a concurring and dissenting opinion in which Chief Justice Baer joins.
Justice Saylor files a dissenting opinion.
[1] Notes of Testimony (“N.T.”), Habeas Corpus Hearing, 2/2/2016, at 60.
[2] Id. at 63.
[3] As we discuss in more detail below, at Cosby’s trial, the trial court permitted the Commonwealth to call five witnesses who testified that Cosby had engaged in similar sexually abusive patterns with each of them. We granted allowance of appeal here as well to consider the admissibility of that prior bad act evidence pursuant to Pa.R.E. 404(b). However, because our decision on the Castor declination issue disposes of this appeal, we do not address the Rule 404(b) claim.
Cosby was tried, the jury deadlocked causing a mistrial, he was retried and convicted in 2018 with a sentence of 3 to 10 years. He was denied parole as he refused to take part in a sex offender course, maintaining innocence. So, he ultimately served the minimum sentence. I do not take from the statement of facts and procedures in the case that Bill Cosby is vindicated, an innocent man freed. I appreciate his costar and apparent long-time friend’s loyalty but do not think many are ready to join her.
FINALLY!!!! A terrible wrong is being righted- a miscarriage of justice is corrected! pic.twitter.com/NrGUdwr23c
— Phylicia Rashad (@PhyliciaRashad) June 30, 2021
Here is the thing to take from this case: good intentions must not trump our Constitution, and prosecutors can make very serious errors that result in justice denied to one side or another. Here the original prosecutor made a calculated decision to strip Cosby of his Fifth Amendment rights by declining criminal prosecution, hoping to force his testimony against himself in a civil trial for money damages. This worked. Then a new prosecutor decided to make a career off Cosby, the Constitution be hanged, and a trial judge went along with this. So, the highest court in the state had to clean up the mess.
* What Transpired beFore? It is worth briefly reviewing the backstory on Bill Cosby.
Bill Cosby was a brilliant young stand-up comic in the 1960s, with a series of clean LPs (long-playing records) sold to the public and a second “blue” set for Las Vegas and other appropriate adult venues. I learned to love Cosby’s comedy from his albums Why Is There Air? (1965) and 200 M.P.H. (1968). The first had stories about his childhood (kids get hurt playing, cover up the blood, then run home and say “look Ma,” and college athletics “do not touch, certain parts of your body, while you are on the football field. The second had a routine about the young star buying a Ferrari. “I need a car that goes 200 MPH.” The bit ends with him telling the salesman to “take the keys, and give them to Steve McQueen.” These are pieces of my family’s early memories, part of the sound track of my early youth.
We did not have television, so I missed both I Spy and the longer running animated Fat Albert and the Cosby Kids. I did catch bits of The Cosby Show, which Bill Cosby controlled and deliberately designed to counter-program the Hollywood and New York negative/patronizing portrayal of black men and black families. In his creation, the husband was not a fool, an oaf, and the kids were not running the household. Nor were the kids Ho’s and Pimps in training, contrary to what white executive-dominated corporations were selling behind the black faces of Rap/Hip Hop.
Then Cosby really stepped in it. He went from the non-threatening positive storytelling of The Cosby Show to speaking truth to real power. Howard Kurtz laid this out in 2014: “Why liberals are turning on Bill Cosby over rape allegations.”
let’s flash back to 2004, when Cosby disrupted a celebration—a Constitutional Hall gala marking the 50th anniversary of Brown v. Board of Ed—with some blunt talk about the black lower class:
“People marched and were hit in the face with rocks to get an education, and now you have these knuckleheads walking around…. The lower economic people are not holding up their end of the deal. These people are not parenting.”
[…]
“These are people going around stealing Coca-Cola. People getting shot in the back of the head over a piece of pound cake and then we run out and we are outraged, ‘The cops shouldn’t have shot him.’ What the hell was he doing with the pound cake in his hand?”
Here is Cosby in longer form at Howard University in 1996:
Kurtz went on to name an early opponent whose name you will recognize, and whose agenda has always been obvious:
Village Voice piece by Ta-Nehisi Coates calling Cosby “condescending”: “When the Coz came to Constitution Hall last week, he was one up on his audience. He had no solutions, and unlike his audience, he knew it.”
Many on the left, it’s fair to say, did not embrace Cosby’s indictment, as indeed it seemed to undercut the case against racism. Four years later, Coates wrote an Atlantic piece subtitled “The audacity of Bill Cosby’s black conservatism”:
“Cosby’s rhetoric played well in black barbershops, churches, and backyard barbecues, where a unique brand of conservatism still runs strong. Outsiders may have heard haranguing in Cosby’s language and tone. But much of black America heard instead the possibility of changing their communities without having to wait on the consciences and attention spans of policy makers who might not have their interests at heart. Shortly after Cosby took his Pound Cake message on the road, I wrote an article denouncing him as an elitist. When my father, a former Black Panther, read it, he upbraided me for attacking what he saw as a message of black empowerment. Cosby’s argument has resonated with the black mainstream for just that reason….
“But Cosby often pits the rhetoric of personal responsibility against the legitimate claims of American citizens for their rights. He chides activists for pushing to reform the criminal-justice system, despite solid evidence that the criminal-justice system needs reform. His historical amnesia—his assertion that many of the problems that pervade black America are of a recent vintage—is simply wrong, as is his contention that today’s young African Americans are somehow weaker, that they’ve dropped the ball.”
It was a young black stand-up comic in 2014 who finally said the quiet part out loud. Hannibal Buress launching a 2-minute bit on Cosby as rapist from a Philadelphia stage.
Yeah, but you rape women, Bill Cosby, so turn the crazy down a couple notches. I’ve done this bit on stage and people think I’m making it up…. when you leave here, Google “Bill Cosby rape.” That sh** has more results than “Hannibal Buress.”
What preceded the “yeah but” was an expression of resentment that Bill Cosby, who came out of the ‘hood, would dare publicly call other black people to personal responsibility and so threaten the grievance industry gravy train.
AND. Bill Cosby, who could have had all the beautiful women he wanted fully conscious, if somewhat intoxicated, apparently wanted to exercise chemically aided dominance. All his remarks, once the allegations started surfacing, seemed not quite straightforward. Whatever the true truth of the matter, Bill Cosby will never get a career and a piece of his reputation back unless he does a full show trial self-criticism. That will likely not suffice, but Cosby has no path to secular “redemption” that does not include complete self-abnegation, complete renunciation of self-reliance, and street-level accountability, replaced with the full BLM approved mantra.
Published in Law
Ideas are orphans.
Yes Cosby did wrong. But I often wonder about what makes a “career woman,” the me-too prototype. So many of them forego biology, waiting to have children until it’s “convenient” or not having them at all. A career woman does what ambitious men have always had to do: sell themselves. I suggest that women are naturally more modest than men and they violate this precious quality with the “you go girl” attitude. Should we not examine our value system when it aporoves of a woman secluding herself with a man? Mike Pence would never be alone with a woman other than his wife. If men and women would adopt this simple practice, a culture of restraint and a sense of personal refinement might follow in its wake.
Compare and Contrast: Lifetime achievements of Bill Cosby and George Floyd. Go…
(Remember, number of statues dedicated to each is all that really matters.)
The problem I have with any analysis of reputation in today’s environment, is that it assumes there is some kind of just societal consensus about such things. The truth is that media controls in our society are so centralized in the political left that someone such as Bill Cosby can no longer restore the reputational status which his stature earned him. As soon as he began his truth-telling the black community the left-dominated media was out to get Cosby, to de-platform and trash him before his ideas attracted more followers. Meanwhile movements like #MeToo intentionally pressure journalists to lopside coverage, raising all sexual exploitation accusations into “media death penalty” cases. So Judge Kavanaugh’s “reputation” gets the Clarence Thomas treatment, and when that doesn’t work, he morphs into Jeffrey Epstein.
“Innocent until proven guilty” in a court of law is a principle today’s journalists ignore when it suits them, but it should be the public cornerstone of judgements about the veracity of allegations. Media consumers, in “the court of public opinion,” read leaked, excluded, or pre-conditioned documents and make judgements about people’s personal lives as unofficial, unvetted jurors. Many make these judgements in a political context, because political causes and “the ends justify the means” have displaced religion-based standards of morality.
In the case of Bill Clinton, his “reputation” as a successful President survives, despite a litany of criminal accusations including, yes, unprovable claims of rape. I would argue that Bill Cosby’s historic accomplishments deserve at least as much sympathy as Clinton’s have received. Just as an example of how Clinton is treated, America’s most popular author James Patterson wrote an early book exposing Jeffrey Epstein, but Patterson recently co-authored a recent fictional best-seller with former President Clinton.
If I were a top level news editor, I would instruct my team to treat yesterday’s final verdict on Cosby’s personal life as an opportunity to air, once again, his recorded speeches and exhortations to the black community about behavior within the ranks. In the context of last year’s riots and the corporate pandering to BLM, those ideas are timely today and in need of review. I’d order the journalists to ask for comments and remarks from other black celebrities from James Earl Jones to Denzel Washington, and conservative black intellectuals too, to discuss that side of Cosby’s legacy, completely outside the context of the allegations about his personal life.
Except, apparently Cosby never admitted in his deposition to giving women drugs WITHOUT their consent- that’s the rub. Even Ms Constand admitted he openly offered her 3 pills for the stress she was complaining about & she took them. If you read anything about Hugh Hefner & other powerful men who frequently traded sex for favors with women who wanted careers in Hollywood, it was common for the young women to WILLINGLY take quaaludes before engaging in sex with the powerful figure. I know it’s pathetic – but these women knew full well they would not enjoy the encounter, so drugs were helpful and the “star” knew full well the women weren’t interested in them (the fact these women preferred to be semiconscious while having sex with them rids one of any illusions of sexual bliss or romance). The whole affair is sordid and pathetic EVEN when consensual. I have no doubt the line between consensual sex and rape was thin, often obscure and crossed. But sorting that out w/o any physical evidence is a tough call for a prosecutor when facing a powerful, wealthy and popular figure.
I think that you said it perfectly. Cosby was tried unfairly and was also as guilty as hell.
Bad ideas are orphans- successful ideas have a thousand fathers… my apologies to Winston Churchill.
He may have been, but I’d argue you cannot have it both ways with certainty. A prosecutor that is capable of stacking the deck in one direction would also be capable of stacking the deck in other directions. I already mentioned the use of prior bad acts above, and there is simply no sure way of knowing how testimony was solicited in this prosecution. Additionally, one should question why his first trial resulted in a hung jury if he was “guilty as hell.”
The question of guilt or innocence really hinges on what Mr. Cosby admitted to doing in the deposition. His conviction was vacated due to a legal technicality. He was promised immunity by a prosecutor, and a second prosecutor ignored that promise.
The presumption of innocence applies to a jury. Anyone outside that jury box are free to believe what they want to believe, and are free to form their own opinion on guilt, or innocence.
What exactly does “guilty as hell” mean to American (high) society anyway?:
And it will be ever thus. Powerful men will use that power to get sex from young women who will offer their bodies up in exchange for some idea of a reward. It is the nature of Humankind.
Another way of putting it was that “rape is any form of sexual contact which the woman later regrets having had.”
It seems to me that the accusations against Cosby are no less unprovable than those against Clinton. Neither has any video evidence, or DNA evidence, or what-have-you. If Clinton were to be tried in court, the main reason he would likely be acquitted is not because the evidence is less damning than that of Cosby, but because he’s Bill Clinton. Which has been perhaps the main problem with that whole family, for decades.
I understand that but I was trying to be brief. The deal the government made in the first place would never have had to have been made if the time factor had not negated so much of what Cosby did. The situation that allowed Cosby to escape paying for his crimes when they were still fresh occurrences most likely won’t occur for rapists who attack women in the future. Women now leave their phones on during encounters with strangers, and there are chat rooms to compare one’s experiences with others’ experiences, and more.
I am grateful for the court insisting on this right. I just wish that he’d have gotten punished for the rapes he committed at the time they occurred.
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Also consider comment 35. Maybe that’s no longer the case now, or maybe women just want to be able to deny what they did which was usually not done in the past, but there’s no denying its validity.
If those women want men locked up for “rape” when they were trading sex to get a role or whatever, the women need to be locked up too, for prostitution.
Cosby’s accusers were unanimous in his having used the date rape drug. So if that was the case, then they could not offer their consent, as this drug renders the individual unconscious.
Comment #35 addressed that too, at least in part. Is it impossible to consent to voluntarily (at least in some cases) consuming drugs so that it becomes less unpleasant to do something they want to do in order to advance their career? Again, maybe like with alcohol, that “standard” has changed, but going back in time and applying a modern standard to past events seems like “ex post facto” which is even unconstitutional.
Except if you WILLINGLY took the drugs yourself, before engaging in consensual sex-if you where there to trade sex for fame & voluntarily took drugs before engaging in sex-that greatly complicates the issue. Cosby claims they took them willingly (and as my post above points out- this was done with other famous men-so Cosby’s claim isn’t entirely preposterous). Hugh Hefner supposedly would openly offer quaaludes to young women and state “we call these thigh openers”- see some interviews with Holly Madison. Even Hefner realized these young ladies weren’t panting to bed him- it was business- and they sometimes needed help to seal the deal. Alcohol fueled hook ups are very common on college campuses and it is difficult to sort out consent when people are purposely taken disinhibiting drugs before (and perhaps so they can allow themselves to) they engage in sex. It makes the picture very muddy-it makes beyond a reasonable doubt hard to prove & that is the legal standard. That is why the initial prosecutor didn’t press charges-b/c he felt the case was not strong enough. It is a very ugly picture no matter how you slice it. I have little doubt some of the young women weren’t consenting but how you prove it to a jury is another matter. Hopefully, the civil suits (if not the criminal ones) will end this predatory behavior by the powerful figures-irrespective of whether the sex was quasi-consensual or not.
Are we talking about the same thing?
I am talking about Cosby slipping the drug GHB (gamma-hydroxybutyrate) into a woman’s cocktail or other drink. Although it can be used in lesser amounts as a party drug, in the cases that came about in which a woman identified herself as a rape victim and Cosby as the perp, she was not agreeing to imbibe more than her drink. And he was using GHB as a knock out drug.
So she had not agreed to anything other than a drink.
GBH?- the only drugs I have seen mentioned in the trial are Benadryl and quaaludes.
The Left’s agenda in this matter right now is to keep people talking about Cosby’s interactions with women.
We are under no obligation to follow that narrative at all, as regards Cosby. Bill Clinton, Matt Lauer, Harvey Weinstein, and any number of athletes and celebrities have the creepy men conversation sufficiently covered.
The discussion we should prioritize is about what Cosby had to say to the black community, and I’d add what The Cosby Show embodied for the aspirational, accomplished black upper middle class striver families, whose work ethic and family values are underrepresented in our public media narratives.
The Left would like black Americans focused on the Obamas for that success model, but there are many more Cliff and Clair Huxtables in the world.
In that case, it might be unfortunate that a civil suit isn’t allowed for “prostitution.”
Also, we shouldn’t be too eager to paint the Obamas as “successful,” at least not in ways that others should emulate.
Same with the Clintons, so it’s not “racist.”
What I have referenced is the article about the 60 women who made claims of being forced against their will by Bill Cosby to perform a sex act. Constand might have decided to take quaaludes, but many of the others either had something slipped into a drink or were overpowered. In some cases, Cosby offered a soft drink. In other cases, he simply over powered the woman, through a combination of shock and force. One woman was someone waiting in the green room before going on The Johnny Carson Tonight Show.
https://www.thewrap.com/60-bill-cosby-accusers-complete-list-breakdown-guilty/
The case wasn’t those 60 women- it was Constand- and the evidence there was very weak. No physical evidence, a long delay and she took drugs willingly. Almost no one can rationally doubt Cosby was a predator- but you need evidence and the allegations by the 60 women were very remote-well beyond the statute of limitations. At the civil trial (settled before testimony) 13 women offered to testify anonymously- that is ridiculous-how can one defend oneself against anonymous accusations? IIRC 5 of the 60 women testified in the criminal case and in fact that is one of the reasons the conviction was overturned- see Andrew McCarthy’s article:
https://www.nationalreview.com/2021/06/bill-cosby-freed-why-his-sexual-assault-convictions-were-thrown-out/?utm_source=recirc-desktop&utm_medium=blog&utm_campaign=right-rail&utm_content=top-stories&utm_term=second
BTW if you have NR plus read McCarthy’s take down of the Manhattan DA Cy Vance’s prosecution of the Trump Organization – he claims it is totally politically motivated & pure BS.
We used to like Cosby–a lot–and we never liked Weinstein. But it should be noted that if not every one of Cosby’s accusers is 100% truthful and innocent, Weinstein’s aren’t either. In both cases, there’s no doubt that the man is a monster. There’s a tendency on the right to assume that “Cosby had to be taken down, by any means necessary”, But there’s no special reason why the allegedly all-powerful cultural forces would have sacrificed Harvey Weinstein.
Face it, my fellow I Spy fans: Cosby didn’t stumble into a honey trap. He’s a criminal, and it means he threw away his credibility on moral issues. Sure, what he lectured was often true. But when you’re a hypocrite on that kind of scale, nobody’s going to listen to you.
Still some of the best ever:
I’m still trying to follow yr Hugh Hefner statement. Are you suggesting that since he did as many others in Hollywood did and got away with it, then others should get away with it? The term for what Hefner did would be called being “a john” if the activity occurred out on the street. In some places in the world, neither being “a john” or a prostitute are illegal. But nowhere in the world is slipping someone a mickey and then raping the woman once she is unconscious or badly impaired an act considered anything but rape.
I think the major point is that if the women took drugs willingly, then it’s not “getting away with” anything.
And if the men are “johns” who should go to jail, then the women are prostitutes who should be in the next cell.