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  • Joseph A. Del Russo, JD

Professor Del Russo Explains: The Cosby Pennsylvania Supreme Court decision.

Updated: Jan 6, 2022

The Pennsylvania Supreme Court decision vacating the Bill Cosby conviction was upsetting to many, especially victims advocate. Is it complicated? You bet. I use the word “survivor“ for this essay, recognizing that it’s conclusory. In objective legal analysis, before an adjudication, it should be “accuser”, or better yet, the “alleged victim”. but for this post it will mostly be “survivor”. because in the context of the Cosby case, there’s little ambiguity about his behavior.

to appreciate the Cosby sexual assault prosecution and it’s outcome, we should briefly review the available remedies for sexual assault survivors.

firstly many states have sexual assault “protective orders” (New Jersey is among them). The protections are helpful, but limited in scope. Nevertheless, the survivor need only prove sexual violence by a “preponderance of the evidence”. While the process can be quite emotionally painful—legally speaking, the proofs are not that difficult. the judge has to be convinced that the sexual assault “probably” happened.

Similarly, a survivor can file a civil lawsuit against a perpetrator for money damages. The legal posture is that of private parties (accuser v. accused). The prevailing plaintiff/survivor will typically receive money damages. Again the sexual assault need only be proven by a “preponderance of the evidence”.

In both situations, survivors can take some degree of satisfaction that their experience is now a “legal fact”. That is, sexual violence occurred.

depending upon the context of the sexual offense, there are other remedies at law. For example on school campuses, Title IX of the Education Act applies. This is a 1972 federal law that prohibits gender discrimination. schools/ universities have to use their best efforts to respond to sexual abuse (interpreted as sexual discrimination) by anyone on campus. although schools have the ability to set differing standards of proof, the most common is “preponderance of the evidence“.

Likewise, sexual offenses in the workplace, including sexual-harassment, are subject to federal laws, state laws, constitutional protections against gender based discrimination, and internal HR policies and procedures. Again, for the most part, the level of proof is— did sexual abuse “probably” happen”?

The criminal justice system, however, provides a vastly different path to survivor validation and a sense of justice. And it’s an inherently tricky path, and often not very satisfying. primarily because the criminal justice system is not designed for survivor catharsis.

In fact, the process is not about the survivor, it’s about everyone.

That is, in a criminal case the plaintiff— the person seeking justice from the courts, is the government itself. In England or Canada for example, many cases are captioned “Regina v. xxx”, highlighting the fact that the plaintiff, “Regina” (in a criminal case) is the “Crown”. (the queen or king being the representative of the people). Similarly in California it was the “People v. OJ Simpson” emphasizing that this not litigation among private parties.

The government is seeking justice for the benefit of all persons. The survivors’ input is vital, but the perspective is quite different from private litigation. Certainly while validating for the survivor, a just conviction is technically a victory for the community.

Further complicating survivor satisfaction, the criminal process of holding sex abusers accountable has the most severe potential outcome. The guilty are typically locked in a cage for a period of years. Moreover, if it involves a homicide, in some jurisdictions the government will execute you.

Obviously the stakes are high, so the constitution demands a procedure that is exacting by design. The evidence must be significant and unambiguous. The burden of the government is “beyond a reasonable doubt”. This burden is markedly different from the “preponderance” or “probably” standard.

Recognizing the harsh potential outcomes, including death, the Constitution requires a unanimous verdict by the jury. Those above civil options for survivors, appropriately, do not require such unanimity.

Moreover, the evidence has to be relevant and narrowly tailored to the case before the jury. The prosecutor is not permitted to bring up a variety of bad acts, or bad behavior, or even other crimes. The government is obligated to stick to the case that’s being prosecuted. They are not permitted to appeal to emotions or convict someone based upon an aggregate of prior, unrelated bad behavior.

For example, a man who is accused of assaulting his business partner after a heated argument, should not have his case determined because he cheated on his CPA exam, or follows Donald Trump on Facebook or even that he broke someone’s nose at a baseball game in college.

there are certain exceptions, and reasonable people can disagree about whether there should be more. but fairness prevents people from being jailed for unrelated things they did in the past, even if they are strikingly similar.

this brings us to the Cosby case. You may not recall that Cosby was tried for the very same sexual assault. the prosecution failed. there was a mistrial. that means the jury could not agree on his guilt.

nevertheless, the constitution permitted a new trial. the Pennsylvania prosecutors characterized their decision to initiate a 2nd trial against Cosby as a form of victim validation. not quite within the purposes of the criminal justice system, but certainly fair comment on the courthouse steps.

(btw. the very same survivor, Andrea Constand had settled her civil sex abuse lawsuit with Cosby some years earlier.)

In the 2nd trial, Ms. Constand, who alleged the 2004 assault that was resolved civilly, was not the sole witness. The prosecution had asked the court, understandably after the mistrial, to allow 19 other women to testify going back to the 1970s. 5 were permitted to testify. The trial court, and later an appellate court, found that the 5 witnesses, established a signature crime and/or addressed Cosby’s state of mind under Pennsylvania law.

It is clear that the additional witnesses changed the calculus significantly. Cosby was relatively quickly convicted.

The Supreme Court of Pennsylvania agreed to review the admission of the 5 “other bad acts” witnesses.

The Pennsylvania high court, however, never quite analyzed the constitutional impact of the 5 other sex abuse witnesses’ testimony. They certainly suggested that this was a problem. But there was a more fundamental issue. And that’s why Bill Cosby was “discharged from custody” and released some days ago.

years earlier and before Cosby made damaging admissions in Ms. Constand’s civil lawsuit deposition, the Montgomery County District Attorney had assured Cosby that he would not be prosecuted. This is known as “prosecutorial immunity”.

The immunity promise was even more legally problematic than the “prior bad acts” evidence, according to the Supreme Court. So much so, they did not need any discussion of the 5 witnesses’ “other bad acts” testimony.

To understand what happened here requires a bit of time travel.

One of the enduring legacies of the US Constitutional Convention of 1787 is the 5th amendment. This prohibits the government from forcing us to provide testimony in a criminal case. The so-called “right to remain silent”. Criminal prosecutions must rise and fall based upon evidence other than compelled testimony from the accused. Such compelled testimony was often among the many strategies that absolute monarchs used to maintain their grip on power, and eliminate political enemies. thus our constitutional framers specifically prohibited “self-incrimination”.

Now in the Cosby case, once there was a promise of prosecutorial immunity Cosby feared no criminal peril from testifying in his civil deposition. He then made a number of statements that supported his guilt on the Constand sexual abuse accusations. These statements, while not the product of medieval torture, were clearly the result of prosecutorial “bait and switch”, according to the Pennsylvania Court.

Was the Pennsylvania Supreme Court correct and it’s interpretation of Pennsylvania law and the United States Constitution? Maybe.

Should the 5 “prior bad act”witnesses have been permitted to testify? The appellate court who reviewed the same issues months earlier ruled that that testimony was appropriate. And they wrote a detailed 94 page opinion explaining why the conviction was justified.

As a SVU prosecutor I had always believed that “prior bad acts” evidence should be more liberally permitted in criminal child sex abuse prosecutions (where there are substantial similarities). I thought “signature crime” analysis was too constraining in cases where the proofs are often complicated and sparse. Properly tailored, evidence of sexual “other bad acts” could be a fair form of evidence in a criminal child sexual abuse trial. Some states are more liberal. (surprisingly, Texas is more liberal on the admission of such evidence in criminal child sex abuse trials).

As far as loosening the restrictions on “prior bad act” testimony in adult sexual assault cases and criminal prosecutions generally, that’s a much harder question. It is a very dangerous suggestion.

Regarding the Cosby promise of immunity (which the government never conceded was binding), I would agree that it was highly problematic.

In fact, this last series of prosecutions had its genesis in public outrage over those very Cosby deposition statements. Before the New York Times published Cosby’s statements from a sealed deposition any thoughts about a criminal prosecution were long forgotten. Once the deposition admissions were published nationally, the clamor for a criminal prosecution quickly reached new heights.

So the impact of Cosby‘s deposition arising from the Pennsylvania prosecutor’s constitutional curveball, cannot be overstated.

Cosby can be retried. Nevertheless, the prosecution is unlikely to try Cosby a 3rd time. For variety of reasons, including that the deposition admissions will never be heard by the jury. And that the Pennsylvania Supreme Courts suggestion that the “other bad acts” testimony was constitutionally troublesome.

Which brings me back to my original observations. there are a variety of ways to get some semblance of justice for sexual abuse survivors, but the criminal justice system is the least likely forum. A criminal prosecution is a crude instrument for survivor satisfaction. There are interests beyond that of the individual accuser. And the entire process is weighted heavily towards fairness to the accused, and less so for the accuser.

While we find some outcomes repugnant, especially when we believe we know the facts, and it’s “obvious” that someone is guilty—-there are thousands and thousands of similar cases, involving all manner of criminal behavior that are impacted when we apply the law unfairly. Some of which involve persons who may not be so “obviously” guilty finding themselves locked in a government sponsored cage.

Survivors should take some solace in this truth. It’s not about them, it rarely is. In fact, Cosby‘s responsibility for decades of sexually exploitive behavior was a foregone conclusion before this trial.

But criminal prosecutions are not about the objective, historical truth. They are about whether the government, for the protection of all, can fairly prove the guilt of its citizenry “beyond a reasonable doubt”. Two very different things.

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