The jury returned its verdict in the retrial of Bill Cosby. Guilty, guilty, guilty. And much as honor an acquittal for sustaining our presumption of innocence, a guilty verdict brings that presumption to an end. Cosby is guilty. Guilty defendants can become unguilty if a subsequent court reverses the conviction, but until that happens, guilty he is. That’s just the way the system works.
But the retrial, unlike the first trial, was a very different beast. An expert to tell the jury the right way to think. Five witnesses who witnessed nothing of the conduct between the defendant and the one accuser, but got to tell their stories anyway. And between the first and second trials, there was the #MeToo movement, which changed the paradigm from facts to feels when it came to women’s sexual complaints.
The conviction of Bill Cosby for conduct committed in 2004 may be the first #MeToo conviction. At least, that’s how some are trying to spin it.
Today’s guilty verdict in the sexual assault case against Bill Cosby closes a chapter left unresolved by last summer’s deadlocked jury. A retrial typically looks much like the first go-round. But in this case, the #MeToo era began between the two trials. So the second trial has become a litmus test of the movement’s impact. Because the jury convicted this time around, it is tempting to think that #MeToo is already improving the criminal justice system’s notoriously poor handling of sexual violence.
This was written by a former DANY prosecutor, now lawprof at Northwestern. Deborah Tuerkheimer. The headline given the op-ed sets the tone: The Cosby jury finally believed the women. Not believed the facts. Not believed the evidence. Not even believed Constand, whether described as “accuser,” “victim” or even “survivor.” Not woman. Women.
I would urge caution about generalizing in this way. In many respects, this was no ordinary sexual assault prosecution. The case featured a celebrity and dozens of accusers. The two trials involved different witnesses, different lawyers and different jurors. Even with these caveats, I do see the conviction as a mark of progress — progress that is best understood in relation to the work of #MeToo.
She doesn’t “urge caution” about convicting an individual defendant in the name of the cause, to vindicate the complaints of women that they weren’t believed whether they were telling the truth or their truth. Rather, her caution is that this may not be enough to show that the #MeToo movement has gained sufficient momentum, sufficient acceptance, to guarantee that every person accused by a woman will be convicted.
First, Andrea Constand, the main accuser in the case, was believed. She did not face the “credibility discounting” that usually confronts women who make allegations of sexual assault and harassment. As I have described in a recent paper, police officers, prosecutors and jurors tend to default to doubt when evaluating the credibility of an accuser. Even abundantly corroborated allegations of sexual assault may not result in prosecution, much less conviction. Credibility discounting helps to explain research showing that sexual assault very rarely results in criminal justice accountability.
There was a time when “default to doubt” was considered a foundational virtue of the legal system. Don’t believe because you believe, but believe because the facts support the belief. But that resulted in accusers being questioned and challenged, which made them feel devalued, as if people didn’t believe them. Of course, just because someone says so doesn’t make it so, but when it came to accusations of rape and sexual assault, that was no longer the paramount concern. At least not for women. Not for their allies. Not for the people of Salem.
#MeToo offers a much needed corrective. While not all allegations are true, of course, starting from a position of not believing women who allege sexual assault reflects a widely held set of misconceptions and biases. The defense in the Cosby trial revived many of those tired tropes of lying women, but this time, the jury rejected them. This suggests that we are recalibrating our judgments about who to believe.
That’s the narrative, that questioning accusations reflects “misconceptions and biases,” the “tired tropes of lying women.” Except they may be lying women. Or they may not. Before, women were treated as any other witness, any other victim of a crime.
This “much needed corrective” is that women require special treatment, a presumption of belief unique to women, because they cannot be treated like anyone else. Except Tuerkheimer ties up her package in uncited pretty pink bows to make women not seem so incapable.
But it’s not just the laudable corrective designed to overcome women’s incapacity to face the world like any other putative victim of a crime. It’s the crime itself, reimagined.
We are also rethinking the meaning of consent.
Because Pennsylvania state law provides no definition of consent, the judge instructed the jury to use “common sense” in interpreting the term. In the past, this would not necessarily have resulted in a conviction. Indeed, a physical resistance requirement was traditionally a mainstay of the criminal law around sexual assault. Common sense has evolved, and the jury’s verdict reflects this new consensus: an immobilized woman is not consenting.
Ah yes, the “common sense” definition. What could possibly go wrong? But if, as Tuerkheimer contends, “common sense has evolved,”* then the statute as applied is unconstitutional. Cosby cannot be convicted of a crime for conduct that occurred in january February sometime in 2004 based upon a definition of consent that didn’t exist until 2018. Notice of what conduct is wrongful is yet another fundamental aspect of due process, together with being convicted for the conduct committed rather than to vindicate the sad feelings of a hashtag.
It’s not that Tuerkheimer cares much about getting the law wrong, or that a person was convicted for what may well be all the wrong reasons upon all the wrong evidence. Rather, a lawprof’s foremost concern is that this may not be the harbinger of all men being convicted because all women must be believed.
Before you deem this the equivalent of the silly ranting of students at CUNY law school to “fuck the law,” consider that this isn’t a law student but a law professor who cares no more about the law than the kids. Of the two, who has the greater capacity to do harm?
*Of the great many bizarrely irrational things asserted without benefit of cite or proof, this may be the one that reflects the descent into madness.
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Gotta hand it to the judge, if Cosby needed grounds for an appeal to end up overturning his conviction, he sure gave him one or two.
Better than being seen as the guy who gave Cosby a chance of Not Guilty, right? After all, that could trigger a campaign to get him to resign.
That’s the thing that bugs me the most about this case. I fully believe Judge O’Neill rubber stamped most of the prosecutor’s motions to avoid the Judge Persky treatment. He probably figured if a faceless appellate court overturns the verdict in 2-3 years, oh well. At least it’s not my name in the top of everyone’s tongue.
It may be the Persky thing. It may be his sensibilities, as reflected in his wife. It may be that he did what he thought to be right. Imputing motive to someone you don’t know is a dangerous thing to do.
I think people buttress their convictions with a certain amount of pragmatism. I think all judges to some extent notice when they’re at the center of a high-profile case and realize how much attention their ruling(s) will bring. I think there were several quite egregious lapses in judgment with how this case was handled by the judge and prosecutor. How many high profile lawyers and media entities are calling out the system for their handling, either in general or in light of the guilty verdict?
It’s not that your reasoning is flawed, but that none of it proves the point. I have no idea why Judge O’Neill did what he did at trial, but despite all those reasons, he may just have been the best judge he knew how to be.
I fully believe it was because he ate chopped liver for lunch, but I can’t figure how that worked.
Mmmm, liver and onions with creamed spinach. I know what I’m having for dinner. Thanks for the idea.
It is unfortunate when the political craze du jour seeps into a criminal trial, especially when it happens with the effective cooperation of the court. It must be Trump’s fault that railroading black men for sexual assault complaints is back in style in Pennsylvania. It’s just too reactionary for any other “because reasons.” Maybe Cosby will get his own obelisk in the new, national lynching monument.
Who gets the bigger memorial, the black guys or the feminists?
If it was a hung jury maybe a third trial with 10 other similar victims testifying would have been allowed to remedy the situation.
Second trials always give the prosecution the opportunity to fill the gap. Ten, 100, whatever.
I’m just wondering about those “tired tropes” of rapist men. It occurred to me that if Elvis Presley were alive and a decrepit old man today he might be called on to convince a jury that he didn’t rape those women that threw themselves at him. Why would anyone doubt that such an old man would need to administer knockout quantities of drugs to procure sex?
Way back when, not sharing one’s ‘ludes was considered rude and inhospitable. But those were different times, and it’s not as if the norms when it happened matter more than today’s tired tropes.
Coke was a sex toy. I’ll have to break out my Hewlett Packard calculator to figure how many decades for the sentence.
I had a TI. Cost a fortune, but it could add, subtract, multiply AND divide.
Or as they were commonly called back in the day…”Fu*k biscuits.”
Sex, drugs and rock ‘n’ roll. They were good times.
When you don’t have enough evidence to prove beyond a reasonable doubt that a crime DID occur, you resort to a credibility contest. Problem is credibility and reliability are subjective. If I had to compare the credibility of the prosecution’s witnesses versus the defence star witness, I would believe the witness that’s held steady employment for 30 years. But somebody else might view running a pyramid scheme and an extortion racket under the purview of Gloria Allred and the likes of her. to make a quick buck perfectly credible. I suspect the prosecution took extra care to ensure they picked jurors who had the same level of integrity as Constand and all the ‘prior bad act’ witnesses.
In my view, the only thing proven that Cosby did wrong was have extra-marital flings and allowing the wrong people to take him for granted. However, nothing about that is a crime.
Your dichotomoy between evidence and credibility isn’t real. Some cases have physical evidence. Some don’t. Some have victims. Some don’t. Some have combinations in varying degrees. Testimony is just as much evidence as any other type, and just like any other type, it’s up to the jury to credit the evidence or not, and then determine if the prosecution has proven its case beyond a reasonable doubt.
Whether he committed the crime or not isn’t the point here. It’s whether improper evidence, in expert and collateral victim testimony, in combination with other problematic issues, produced a conviction that would not have otherwise occurred.
With all due respect, I’m not sure I agree with you with respect to the reality of an evidence-credibility dichotomy. I know you’re a lawyer and thus it would be natural to say testimony is as much evidence as any other type. That is what the law says. Doesn’t mean it’s a good law. I think it should apply to witnesses other than the complainant, but that the independent corroboration rule for a sex crime claim should be brought back. For the lay people watching this case, we look for hard evidence – physical, medical, digital recordings, DNA, undeniable circumstantial, etc for independent corroboration. None of that existed in the Cosby trial to prove Constand’s case, nor does it any the majority of sex crime cases these days. Just words out of people’s mouths and. When we realize that is the only foundation for such a case to even make it into a criminal courtroom, the next logical leap of thought is – how is that even allowed with so much at stake for the accused person? Many people who sit in courtrooms watching these cases say the same thing. Armchair verdict watchers will incorrectly assume there was some hard evidence that proved Constand’s claim to convince the jury. Having said all that, I am baffled that Cosby’s evidence of no contact w/Constand during January 2004 (phone, jet and booking records) wasn’t sufficient to raise reasonable doubt for the jury. That in itself raises a lot of questions. Why did the jury find her story more credible over such exculpatory records?
If your point of this blog post is to point out how the #MeToo movement and the questionable expert testimony of Ms Ziv has the effect of changing the ‘common sense’ of a jury pool, then yes, I would agree that is concerning. Did they rely on Cosby’s 2005 deposition to be a confession, essentially? Of course it isn’t anywhere near a confession and doesn’t reveal any criminal act. It just appeals to emotion and changing theories of what constitutes as a sex crime these days, whether or not an accuser is lying about it.
I’ve written numerous posts about the case. I don’t rehash them in their entirety whenever someone new shows up. Same with the many posts I’ve written about trials and evidence.
If only there were some sort of bar on this site where someone could search for things…
I suspect people no longer get the idea of a blog, that it’s not an article written for public consumption that includes everything about everything, but just one piece of an ongoing puzzle. I may have outlived my usefulness, but that’s a personal problem.
There’s only so many times you can say “fucking focus,” I guess. I’m surprised you don’t get more sick repeating yourself.
I’m going soft in my dottage.
As you go soft, the world goes mad. Keep it together, Pa.
It’s a miracle the legions of women who have had nothing but innocent contact with the rich and famous for the last 30 years have not yet come forward to cash in on this new gold rush!
Some have. Some may realize it’s far easier to tell their lived experience to those inclined to believe than to get a lawyer willing to take their case on contingency.
An appeal seems probable, meaning that yet another batch of cyber-squids will have to die to refill the virtual inkwells that will be spilled when the online elation turns to outraged thinkpieces bemoaning that someone so obviously guilty is still afforded the right to dispute the infallible wisdom of the judge that convicted him.
Won’t someone think of the poor, vulnerable, virtual cyber-squids?
Now that you say it, I realize I was remiss in not mentioning that the right to appeal, like the Fifth, Due Process and Free Speech, is also literally Hitler. Rights are dropping like flies.
AP is now concurrently reporting that Cosby “is under house arrest” and that he “remains free on a million dollar bond.” They have their head completely up their ass.
With the story today citing juror comments, it comes out that the jury evidently construed the deposition testimony about Quaaludes and sex as an admission by Cosby that he had drugged women to incapacitate them so he could sexually assault them. This was one of several possible meanings of the ambiguous testimony that Cosby obtained the Quaaludes to give to women he wanted to have sex with, but was certainly not the only (or even most plausible) interpretation of that testimony. There were, of course, a number of media pundits who miscast the deposition testimony as being such an admission from the first moment it became public. By letting the ambiguous testimony in, the court put Cosby in a position where exercising his right not to testify meant leaving him at risk of his prior testimony being misconstrued. So he potentially goes away for 10-30 years for an admission he did not make.
This is a significant problems with taking conduct occurring years ago and putting them in the context of the time of trial.
Highlighted, in this instance, by the same juror remarking that he is too young to have ever seen The Cosby Show. Not that there wasn’t some problematic testimony in that deposition (where Cosby alluded to being somewhere between resistance and permission). It just wasn’t what they decided to hang their hats on, and it is simply cringeworthy that they got this so far wrong.
Remember, words back then had certain meanings, which have since been reduced to vagaries. It almost seems as if the defense needed an expert witness to explain the context of what was said and done given general norms and mores of the time. It’s impossible for a young person today to grasp sexual dynamics of a decade ago, things have changed so much.
I am disturbed by the Superior Court who allowed in the five additional witnesses and rejected an emergency appeal without comment.
I believe the oldest prior witness bad acts testimony ever allowed in a Pennsylvania court was around 15 years. In the first trial, Judge O’Neill allowed in one prior witness with an unsubstantiated account going back 21 years, only her lawyer said that he remembers she told him it happened 26 years ago.
In the second trial, he allowed in five witnesses whose unsubstantiated stories went back 29-37 years. This totally changes the law.
How is it possible that the Superior Court could just turn a blind eye and dismiss it. How flagrant and biased does a judicial decision have to be before the Superior court will even take a look at it. I would imagine the situation similar to a case where bases loaded two out, team behind by one run in the bottom of the ninth, 3-2 count. A pitcher throws a pitch twenty feet above a batter’s and it goes sailing into the second deck of a stadium. The umpire calls it a strike. The team appeals the call, but the review committee dismisses it without comment. Why have an appeals committee in the first place, if all legitimate appeals are going to be automatically rejected? Why have emergency appeals when obviously legitimate emergency appeals are going to be automatically dismissed?
Why not wait until the appeal before deciding he’s going to unfairly lose?