The Pennsylvania Supreme Court has spoken. The Court of Public Opinion has too, and it has not been as kind or principled. It’s understandable that even those who accept that the law may compel reversal refuse to accept the premise that Cosby is legally restored to the position he held before he was charged, prosecuted, convicted, sentenced and then reversed and dismissed.
It’s a lot to process, but more importantly, there are tropes to embrace to justify the belief that while he may be legally free, his guilt remains a fact and the right to hold him culpable remains an entitlement. But as with so many aspects of the Cosby case, it presents hard issues that give rise to troubling beliefs.
When Ray Donovan famously asked after his acquittal where he can go to get his reputation back, he wasn’t saddled with the nefarious crime of rape during the #MeToo moment of presumed guilt. His reputation might have been lost, but he didn’t have to suffer the public holding him as a rapist in perpetuity. That’s likely Cosby’s fate.
On the factual side, there is a great deal of misinformation taken as gospel, that he confessed to rape during the civil depositions that gave rise to the reversal. He did not, insisting that sex was consensual. He admitted to giving Quaaludes to Barbara Constand, which is viewed as nefarious today as a date rape drug but might very well have been quite normal at the time, when ‘ludes were not an unusual drug for people to take and share. Times change and perceptions change with them. What people today see as irrefutable evil was nothing of the sort at the time it happened, but without that perspective, they can’t begin to imagine it being an innocent, if not quite normal and friendly, act. Drug etiquette was different years ago.
But for the most part, the reactions rely on troubling tropes. First, that an acquittal (or reversal and dismissal) does not mean the jury found a defendant innocent, but merely not guilty. This is, of course, correct, but it does not address the issue. A person walked into court presumed innocent for a few really good reasons. The mere unproven, even if “credible” as has lately become a thing, accusation is insufficient to taint a person. The burden is on the accuser lest anyone accuse anyone else of anything and compel the accused to prove innocence.
Which brings us to the next good reason, which is that proving innocence is rarely possible. Sure, there may be DNA or video on some occasions, but when they’re either unavailable or inapplicable, does that make a person guilty? One person accuses, their only proof being their testimony. The other person denies the accusation, their only proof being their testimony. While the latter may suffice to create reasonable doubt, a denial doesn’t inherently prove innocence. So the accused is caught in a trap: once accused, there is nothing to offer to “prove” anything more than doubt.
This raises a conundrum. If an accused is so unfortunate not to have video, DNA or some other external evidence conclusively proving innocence, is there any way to persuade the Court of Public Opinion that its conclusion about him is wrong? If he’s a favored defendant, he might get a break. If the crime is disfavored, he might get a pass. But for a guy like Cosby and a crime involving sexual assault upon a woman, there is no break to be had. Many people believe, with the utmost sincerity, that they know he’s guilty and that’s that. They weren’t witnesses to a crime. Most get the facts mostly wrong. But they don’t care because they know stuff, and one of the things they know is Cosby is guilty and a rapist.
Which brings us to the second trope, that while the presumption of innocence might be a technical legal rule applicable to courts, they are not bound by it and are fully entitled to believe that the guy they know to be guilty is guilty. Why? Because he is. The newspapers say so. Everybody on Facebook and Twitter says so. All the smartest and most passionate people they know say so. And they are entitled to say so.
Indeed, they are. It’s not a crime in America to believe something that’s wrong and false. It’s not a crime to eschew hard and unpleasant principles when your feelings, your beliefs are clear and certain. Whether you believe the earth is flat or Cosby is guilty, this is America and you are entitled to do so.
I could marshal an argument in his defense, but that’s not the point. I wasn’t there observing Cosby’s conduct. Neither were you. And even the people who were there could have a sincere difference in understanding of what happened. Or maybe Cosby is, in fact, guilty as sin but it just couldn’t be proven. Beats me. My point isn’t to absolve Cosby, but to promote the principle that gave rise to the “technical rule” in court of the presumption of innocence. The principle doesn’t exist because people are innocent, but because there is no tenable way for an accused for whom external proof doesn’t exist to prove innocence.
We’re left with two choices. Either we choose to believe guilt, because that’s what we’re “entitled” to believe, or we’re left to suffer the presumption of innocence, even though everybody we know on the jury in the Court of Public Opinion believes otherwise. I choose the latter, not because it’s a rule in law but because of the principle upon which it rests.
I reject guilt by accusation and shifting the burden to the impossibility of compelling an accused to prove his innocence. I realize that many will see this as robbing them of their entitlement to decide from their armchairs who is guilty, but that’s the price I’m willing to endure for the presumption of innocence.
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Of course it’s completely unsurprising that people who declared Cosby guilty before his political show trial continue to hang their hats on the result of that trial. What do silly old appellate courts know, anyway?
The only way Cosby will ever be free of this will be if Constand: 1) admits to making up her complaint as a shakedown; or, 2) gets caught trying to set up a demonstrably bogus sexual assault complaint on another wealthy target. There is a very small likelihood that either scenario will occur, especially the second one, since there will be experts available to testify that any such complaint is not demonstrably bogus.
You realize this isn’t really about Cosby, but about all the people who are guilty because “everyone” believes they’re guilty, and they don’t to abide the “technical rule” of presumption of innocence, and they are “entitled” to believe someone is guilty. Cosby is the poster boy of the moment. This isn’t really about Cosby.
Most of those people lack the resources of a Cosby, and won’t even get a show trial. They will be eaten by the system, and we will never even know their names, and they will have much larger problems than reputational stigma.
Though there was never a charge or trial did we not see the same thing in the Kavanaugh confirmation?
I was very troubled by supposedly principled people jumping on that bandwagon…. I guess I’m naive to think some politicians are principled.
As you might guess, I had something to say about the Kav hearings.
What really gets my goat is the talking point that the reversal wasn’t about the strength of the evidence. Uh, guys—it was. The DA decided not to bring charges because he knew he couldn’t prove them beyond a reasonable doubt in a fair trial. The fair trial thing just turned out not to be so much of a hang up for his successor.
It’s a much stronger case for those who believe he confessed (he didn’t) and those who view it through the lens of #MeToo.
“I could marshal an argument in his defense.” And I know it would be a very good one! But as I understand it, the very wrongly admitted evidence was induced by a promise that would not have induced false deposition testimony. And the jury convicted.
Still, Crosby of course totally deserves the dismissal. A government promise is a government promise. But the dismissal ends the significance of the criminal law’s presumption of innocence. That presumption is a (critically important) criminal court thing. For criminal purposes Crosby is legally innocent and will remain so. But we should not forget the criminal law limitations as to what the moving finger has now written.
The jury returned a verdict that was not based on involuntary and thus unreliable evidence: is this as sympathetic a case for him, as it would be for someone who was convicted based on unreliable evidence? On this non-criminal stage, I don’t think so.
Any surviving civil cases may help us decide.
I beg to differ (a lot). The dismissal was based on the promise, but without the promise, it would have been reversed because of the admission of five witnesses for propensity evidence, and they never reached the question of the expert rape explainer witness. The first trial hung, and there they still used one propensity witness. The evidence against him was weak to begin with, and they bolstered it with bad, improper and irrelevant evidence.
So now that it’s reversed and dismissed, he’s guilty? As I argue, it’s not just a technical rule, but a principle. If he’s not convicted, he’s innocent, because there can’t be any other principled option.
Scott, I will happily accept your view as to the other reasons you think there should have been a reversal. I don’t think they visibly factored into the thread proposition. But anyway, my small point is that there is no dramatic amount of sympathy due Mr. Cosby just because of the reversal, on the grounds stated by the appellate court. The criminal case is over. For whatever significance it might have, there is no more presumption of innocence.
The trial evidence, flawed as it may be, is fair ground for debate. But the dismissal, based on the ground stated, does not evoke sympathy from me.
It’s time for the civil courts to have their say.
If the relief was remand for retrial rather than dismissal, as the concurrence argued, would he be presumed innocent, guilty or something else?
Mark Dwyer’s sympathy and a dime gets you a cup of coffee.
Not at Starbucks…
They had their shot. They conspired with the first pros to sandbag him. They lied.
Plus if are more then 2 brain cells in his head he is in the process of removing his body and money to a place the bloodsuckers in the former United States of America can touch him.
Judge,
I can appreciate that a post-conviction dismissal on the rather unique basis of an promise not to prosecute might arguably fall outside the norm, but then, what is Cosby? Is he guilty (the many other trial errors that were never conclusively decided because of the dismissal) or is he restored to his pre-conviction state of innocence?
Is there some new purgatory for Cosby and others whose reversal wasn’t based on a holding involving innocence? Civil cases won’t answer the question, as they don’t carry the same burden of proof. So is an unconvicted person still guilty and there’s nothing to be done about it?
“Is he guilty (the many other trial errors that were never conclusively decided because of the dismissal) or is he restored to his pre-conviction state of innocence?”
David, the presumption of innocence is a (very happy) construct of the criminal justice system. As far as the criminal justice system is concerned, Cosby is innocent. That is, the dismissal restores the presumption of innocence — in the system in which it applies. Elsewhere, we are where we would be if charges had never been brought.
As Scott notes, we are all allowed to judge Cosby as we choose. By the way, I don’t think Al Capone was guilty only of tax fraud. Any view I might have about Cosby matters as little to him as that conclusion matters to Al Capone. (Though I concede that the conclusion of others might for real world purposes matter more).
Anyway, I’ll stop now. I’ve had my say.
“The burden is on the accuser lest anyone accuse anyone else of anything and compel the accused to prove innocence.”
Happens all the time doesn’t it?
“Why are you carrying $5000 in your car? Prove its yours or I’m confiscating it”
..and that goes right up to seizing your house, your bank accounts, your business or whatever they like.
In rem asset forfeiture is bad but not a criminal prosecution.
Alas, poor Ken! I knew him, Scott, a fellow of infinite twits, of most excellent fancy. He hath borne me on his RTs a thousand times;
My gorge rises at it.
“accusation is insufficient to taint a person”
Russia Collusion, the Kavanaugh Rape Allegations, Jim Crow 2.0; if it fits your worldview, the allegation is most certainly enough. Someone once said a lie travels around the world before the truth gets it’s pants on. With the internet, its the same with allegations.
The point is that this is what it’s supposed to be in law. We’re all pretty well aware of how it’s working out.