Evidence Subverted: Will Cosby Get A Fair Trial?

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.

So the trial began and the prosecution capitalized on this atmosphere of “believe the victim” with the acquiescence of the judge. The first course of action by the prosecution was to “prep the jury.”

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.

24 thoughts on “Evidence Subverted: Will Cosby Get A Fair Trial?

  1. B. McLeod

    Plenty of reasonable doubt, and plenty of potentially reversible error. Leading with its political expert in an already shaky case was a stupid move for the Commonwealth.

    1. SHG Post author

      Reversible error is the solace of the loser. It’s almost as good as an acquittal, if you got a few years to waste being guilty.

      1. B. McLeod

        Of course, Gloria Allred, the SJWs, all major media outlets, and the entertainment industry (and their respective packs) have long since declared Cosby “guilty” (granted that the same conclusion from a jury would add unpleasant burdens to Cosby’s personal situation). Still, when you have a really “dedicated” judge who successfully manipulates the record for conviction, “reversible error” is better than a poke with a sharp stick.

      2. MonitorsMost

        And evidentiary issues rulings are reviewed for abuse of discretion. Why would the court of appeals stick its neck out for the rule of law in the face of #MeToo when it has even more room to duck than the trial court?

  2. Gregory Smith

    Well I hope the defence counters with its own experts, its own statistics. I personally welcome this as a valuable opportunity to finally have a court render judgement on myths concerning rape being promoted by the “rape culture” advocates. We’ve needed a venue where these demonstrably false claims can finally be held up to proper scrutiny.

    1. SHG Post author

      Sigh. No, the court won’t render judgment on the myths. That’s not how trials work. And while I would suspect the defense will be constrained to make this a battle of the experts, will any legitimate “expert” opine that what the prosecution’s expert says is impossible? Of course not, as it isn’t, and if it isn’t, then it is. There is no coterie of social scientists performing studies to prove that rape accusers are liars, or that people who fail to go to the police are more likely to be fabricating an accusation than not.

      So no, your notion of how this could work out is likely complete fantasy. You can “personally” welcome it all you want, but the rest of us have to live in the real world with the disastrous consequences.

  3. VR

    You asked how this kind of expert testimony was allowed. 2 points about PA law here: first, we’re not a Daubert state, we’re still Frye. Second, there is a statute that specifically allows for this sort of thing, unfortunately. 42 Pa. C.S. 5920. See COMMONWEALTH V. OLIVO, 127 A.3d 769 (Pa. 2015) (holding statue constitutional).

    Didn’t want to leave a long comment, but wanted to fill in the blanks regarding PA law.

    1. SHG Post author

      Thanks for the cite. Damn, that’s awful:

      (b) Qualifications and use of experts.–

      (1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness’s experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.

      (2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.

      Just awful.

          1. Nathan Freeburg

            There are long prewritten crosses that force them to admit that their assumptions are based on anecdote and not scientific data but the key cross is simply that any and all behavior can be victim behavior (early report, late report, no report, etc etc). Ziv has to concede off her own written work. Then the fun close is simply to ask a number of questions that are actually about Cosby’s behavior but that she will readily say are consistent with him being a rape victim (you obviously don’t tell her you’re describing Cosby’s behavior at the time).

  4. Fubar

    No matter what Constand said or did, it was what a rape victim would do.

    Da Do Ron Ron by The Zasu Pitts Memorial orchestra, 1984, with the late, great Morey Goldstein on bari.

  5. Ken Mackenzie

    Even if there was a reliable statistic measuring the rate of false complaints, it would be irrelevant. The only relevant point it proves is that some complaints are false. The jury has to decide whether this particular one is proved to be true.

  6. Bryan Burroughs

    Could you not simply show the absurdity of the “expert logic” in this instance? Going to the police is evidence of rape, not going to the police is also evidence. Being afraid of Cosby is evidence of rape, not being afraid of him is also evidence. You wind up with a theory which provides no way to discern the guilty from the innocent, as it pronounces all as being guilty. For a nice ending flourish, point out that this “theory” has about the same legal utility as “if she’s a witch, she will float,” and take a seat.

    1. SHG Post author

      That’s the response, but to call it “simply” is extremely naive. There’s nothing simple about it.

  7. B. McLeod

    Post-conviction, CBS quickly declared that Cosby would soon be headed to prison. The CBS account also deemed all the collateral accusers “Cosby’s victims” and described “an uncomfortable stare-down” between the legally blind defendant and an unnamed “member of the prosecution team.”

    Now the judge will have his own TV celebrity opportunity to virtue signal during the sentencing. No telling how many dozens of “victim witness” statements will be received for that. I suspect the circus is not nearly over with the entry of verdict, but I hope some of the glaring problems with the trial judge’s handling of this case will result in reversal on appeal. Also, if the same rules apply to Cosby as apply to Kathleen Kane, he should be permitted to remain free pending resolution of his appeals.

    1. SHG Post author

      Guilty, all counts. Some post conviction fireworks, but free on bail pending sentence. Let’s see what happens.

      1. F. Lee BillyGoat

        Congrats on your pre-conviction essay above. You nailed it. It’s not easy being sleazy, but you manage irregardless of the consequences or the backlash. This is really quite tragic, even if Cosby is “guilty” [as charged]. We here at Billy Bob Headquarters think this might be payback for the Simpson not-guilty verdict a generation ago. The so-called criminal justice system sucks, yes it does. Been there, done that, as posted by me multiple times, here and there.

        There are plenty of issues here, which hopefully will be brought up on appeal. Unfortunately, appeals are more often result in rubber-stamping of the trial court. We shall see, but it does not look good from where we sit. The man is eighty years old, for cryin’ out loud. Salem witch-hunting is alive and well in the 21st C.

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