The first trial ended in a hung jury, to the consternation and outrage of onlookers certain that there could be no outcome other than conviction. The difference was that the jury heard evidence. This time, the atmosphere may be different.
Bill Cosby’s retrial for drugging and sexually assaulting a former employee of his Philadelphia alma mater, Temple University, resumed. His first court case ended in a mistrial in June 2017, after the jury deliberated for more than 50 hours, but couldn’t agree on a verdict. But, things might be different this time. This second trial comes in the wake of the national #MeToo movement. And, it could change everything.
This is quite right, and very wrong. There was much wrong about the fact that the evidence itself was old, stale, in the sense that it reflected mores of an earlier time which have since been supplanted by presentism, the view that historic facts be considered in current context rather than the context of their time. And still Cosby’s jury hung.
More than 58 women over five decades have come forward to accuse Cosby of sexual misconduct. Incredible numbers over a wide timespan. And, the stink of such accusations didn’t stick. There was no recourse, no penalties. Shockingly, these were the first allegations that brought a criminal case against Cosby.
This is the sales pitch, but it’s not the case on trial. Bill Cosby is accused of committing a crime against one, and only one, woman, Andrea Constand. Yet, it is indeed the “stink of such accusations” being used to bootstrap one case with extremely dubious evidence into a cause, the goal of which is to convict Bill Cosby without regard to Constand because he’s terrible. And as the #MeToo movement declares, only misogynists demand proof.
On the opening day of the prosecution case against Bill Cosby, a shoulder-to-shoulder courtroom audience waited, many scooting forward in their seats, for an assistant district attorney to call the first witness.
Would it be Andrea Constand, the lanky former pro basketball player and main witness against Cosby, who alleges that he drugged and sexually assaulted her?
In most cases, the prosecution leads off with a witness who will either establish the occurrence of the crime or provide the contextual backdrop for the victim.
Would it be one of five other women — known as “prior bad act witnesses” — cleared to testify against the legendary entertainer?
Judge Steven O’Neill had already issued a very controversial ruling to allow the prosecution to introduce the testimony of five additional accusers to show a pattern to Cosby’s “bad acts.” This would clearly bolster Constand’s accusation, at the expense of showing extremely prejudicial propensity. But as bad as that may be, the prosecution chose a different path.
The reaction, then, when prosecutor Kristen Feden called out the name of an expert witness to lead off Cosby’s retrial on sex assault charges might best be summed up as “meh.” Shoulders slumped. There were audible groans.
For the media, for the public, this was a definite downer. No salacious testimony about Cosby, drugs and sex. But the purpose of this “meh” witness was clear. The prosecution sought to prejudice the jury by “teaching” them the ways of the woke before they would hear a single fact.
But this particular expert, a flinty-voiced and abundantly self-assured forensic psychiatrist named Barbara Ziv, may prove to be one of the most important witnesses if prosecutors prevail in the sprawling case. Ziv testified about “rape myths” — widely believed misconceptions about the behavior of victims of rape and sexual assault, such as expecting women to immediately file police reports and to cut off contact with the men who attack them.
“Most common knowledge about sexual assault is wrong,” Ziv said.
These contentions have been argued ad nauseam, here and elsewhere. They are “proved” through bad social science in the hands of advocates with sufficient credentials to appear as experts. And indeed, Ziv did a very good job for the prosecution.
At another point, the psychiatrist during her testimony called out [defense lawyer Kathleen] Bliss for perpetuating what she called “the rape myth.”
“A very logical and rational response would be to feel revulsion [toward the perpetrator] —” the attorney started to ask.
“No,” Ziv retorted. “That’s the whole point of the rape myth, you just articulated the rape myth. No, it isn’t normal [to feel revulsion], that isn’t a natural response.”
Ziv’s testimony is that there is no course of conduct which doesn’t ultimately support the credibility of the accuser, and she made her point with a pretty snappy comeback. Heads she wins. Tails Cosby loses. No matter what Constand said or did, it was what a rape victim would do.
How this survived Daubert scrutiny is one mystery, but the bigger question is how the prosecution was permitted to introduce expert testimony on this subject at all. If the argument is that a jury is incapable of assessing the credibility of a witness’ actions, then there isn’t much point to having a jury. If an expert is allowed to usurp their function by indoctrinating them into the rape survivor narrative that there is no reaction to rape that is inconsistent with victimhood, what is the jury to do?
But it got worse still.
While being cross-examined, Ziv testified that no more than 7 per cent of sexual assault allegations are false, and she thinks the number could actually be as low as 2 per cent.
This is facially false, but apparently the defense opened itself to her testimony on cross. Curiously, Ziv was wholly unqualified, despite whatever other qualifications she possessed, to render such testimony, and yet she did.
The decision to call Ziv as the first witness represented a major tactical shift by prosecutors. In Cosby’s first trial, which ended with a hung jury last June, they opted for a more dramatic kickoff, calling a “prior bad acts” witness who sobbed on the witness stand about Cosby allegedly drugging and sexually assaulting her at the swanky Bel-Air Hotel in Los Angeles in 1996. This time, they opted to first educate the seven-man, five-woman jury about rape myths.
The jury will ultimately render a verdict, and perhaps Cosby’s lead counsel, Tom Mesereau, will manage to counteract the expert instruction that the accuser must be a victim. But this began as a trial not based on evidence, but prejudice, an expert teaching the jury to ignore the evidence of what Constand said and did, and instead replace it with believe the victim and convict Cosby. This isn’t how trials are supposed to work, but the onlookers won’t care as long as Cosby gets convicted.