Bill Cosby sex assault conviction overturned by court

Cicada 5

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Even if he's out of jail, he will still be ostracized from mainstream society. No one but his most ardent supporters will even look at him. And definitely no woman will talk to him.

It will take another lifetime to regain his reputation and he's gonna die in probably 10 more years.
Cosby isn't getting out of this unscathed but he's still getting a better deal than most people less rich and famous than he like this poor woman.


 
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Schadrach

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That wording just absolutely infuriates me. His deposition where he confesses to doing stuff, is dependent on him not being prosecuted. That's not innocent damnit!
It's shitty, but I get why it has to work the way it does. Basically by claiming they were not going to prosecute, he couldn't invoke the 5th during the civil case, and then those statements were used as the basis of prosecuting him afterward, if I understand it? So basically it was either give Cosby his freedom or substantially weaken the 5th amendment?

And definitely no woman will talk to him.
Eh, even serial killers have groupies. Weirdly enough especially ones that like to murder women in brutal ways. Don't see why this would be much different.

This touched on the question of whether it's better to have an innocents in jail or a guilty people free and most people (and the law) come down on the side of guilty free.
There are a shocking number of people who feel that sexual assault is special and should be an exception to that rule, up to and including people who think sexual assault (and only sexual assault) should be guilty until proven innocent.

I'm not quite sure what would happen if new women came forward and claim he abused them, maybe there could be a new trial?
An agreement not to prosecute one crime doesn't apply to other crimes. So I would think if new incidents came to light and there was enough to charge him there wouldn't be a problem with that. So long as they aren't relying on statements they prevented him from invoking the 5th on.

As far as I understand, he also can’t be tried again due to double jeopardy.
Yeah, basically. But that's another of those rules that's really unfortunate here but also really important.
 

Eacaraxe

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Yeah the DA just royally fucked up...
The DA didn't "fuck up", this is how prosecutorial discretion, plea bargaining, and nol. pros. agreements work. And, frankly, prosecutors do have the power to "lie about this" all the time due to those very mechanisms in ways that are often (deliberately) obscure to the general public.

See also, Jeffrey Epstein. Or for a case on the flip side of things, Derek Chauvin when Bill Barr shut down his attempt to plead guilty on a state third-degree murder charge to avoid federal trial (plea bargaining that, by the way, is apparently proceeding rather nicely for him under the Biden DoJ).

It's absolute bullshit, and the need to regulate prosecutorial discretion is one of the biggest salient issues in criminal justice and criminal justice reform. In the USA, prosecutors hold basically all the power in the justice system and are really only constrained by the reasonable doubt standard. It's particularly egregious in the case of sexual offense, institutionally and not limited to high profile cases. I'd go so far as to say the high profile cases are the area in which prosecutorial power is at its nadir, due to the level of public attention and scrutiny on the case -- the usual tricks of the trade (one of which was uncovered here) don't fly when the mob demands its pound of flesh.

See also, Harvey Weinstein: a case that never would have gone to criminal trial and would have languished in civil court, but for the salaciousness, profile, and scrutiny levied on the case.

This is to what it boils down: the key performance indicator for a prosecutor is their conviction rate. Higher conviction rate is better, and the national average is 94-95% if I remember right. The unintended consequence of which being, prosecutors are incredibly risk-averse when doing their jobs, and overly rely on plea bargaining and declining to prosecute to keep their conviction rate up. Keeping cases they're not guaranteed to win out of court is their highest priority; declining prosecution is the simplest and fastest way to keep their conviction rate up, but sparing that a conviction without going to trial is the best of both worlds.

Even when plea bargains are coerced.


This is why sex offenses are so problematic for the US criminal justice system. Sparing ironclad evidence, it's incredibly difficult if not impossible to get a conviction in a sex offense case, since the linchpin of cases is usually hearsay and testimony from conflicted parties. So, prosecutors take the path of least resistance in cases with sufficient evidence to at least get some form of conviction: plea bargains for (usually non-sex-related) lesser charges.
 
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happyninja42

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It's shitty, but I get why it has to work the way it does. Basically by claiming they were not going to prosecute, he couldn't invoke the 5th during the civil case, and then those statements were used as the basis of prosecuting him afterward, if I understand it? So basically it was either give Cosby his freedom or substantially weaken the 5th amendment?
My issue, well, I have several issues about all of this, is that the deposition he gave, under the agreement of not being prosecuted, is where he admitted to buying drugs to use to have sex with women. Basically admitting to the crime. If it's the same deposition I've seen cited before anyway. And that just infuriates me as to WHY that would be considered a fair deal at all.

I mean he can fucking say he didn't do it all he wants, but we literally have him on public record, saying he bought sleeper drugs, with the express intent of using them to rape women. So I don't see how any of this should've got to this point based on that.
 

CM156

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As far as I understand, he also can’t be tried again due to double jeopardy. Isn’t the decision voided, not found not guilty. Is there a difference?
I didn't really see double jeopardy enter the decision, but I might have overlooked it.
 

Revnak

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This is to what it boils down: the key performance indicator for a prosecutor is their conviction rate. Higher conviction rate is better, and the national average is 94-95% if I remember right. The unintended consequence of which being, prosecutors are incredibly risk-averse when doing their jobs, and overly rely on plea bargaining and declining to prosecute to keep their conviction rate up. Keeping cases they're not guaranteed to win out of court is their highest priority; declining prosecution is the simplest and fastest way to keep their conviction rate up, but sparing that a conviction without going to trial is the best of both worlds.

Even when plea bargains are coerced.
Despite knowing how huge of an issue this is in another country I have never been to (Japan), I had never looked that stat up before and holy shit it does not stop at a mere 95%.
I’m genuinely surprised. I knew we had similar issues along those lines, but worse? That’s ridiculous.
 

Eacaraxe

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Despite knowing how huge of an issue this is in another country I have never been to (Japan), I had never looked that stat up before and holy shit it does not stop at a mere 95%.
I’m genuinely surprised. I knew we had similar issues along those lines, but worse? That’s ridiculous.
Yup. Cop violence is just the tip of the iceberg. Isn't war on drugs- and mass incarceration-era criminal justice just fucking dandy?

This is precisely why I keep saying post-civil rights era drug law and the prison-industrial complex is the new Jim Crow. Y'know, because it is. These aren't new concepts, mind -- convict labor and convict leasing have been formal institutions since the Civil War, and the "drug war" dates back a century to when it was used to crack down on Mexican and Chinese immigrants rather than black Americans -- they just metastasized together to form a gestalt for institutional racism in the wake of the civil rights acts.

It's also why I keep banging on about regulating prosecutors in the multitude of BLM-, Trump-, and Biden-related threads as the keystone for any substantive, lasting, or meaningful CJ reform.

These are ultimately the same salient legal issues, the same societal forces, and the same influences behind those forces, as the Cosby case and sex offense in the broader sense. Here, the color of Bill Cosby's skin has less relevance than his capacity as a celebrity to afford to appeal his conviction (or for that matter score a nol. pros.). Appellate court is not cheap. That would not have been an avenue for anyone of lower economic status, except in the rare case a defendant can get the aid of a non-prof, or an appellate lawyer thinks they can get an easy win (or is getting their pro bono hours).
 

Specter Von Baren

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My issue, well, I have several issues about all of this, is that the deposition he gave, under the agreement of not being prosecuted, is where he admitted to buying drugs to use to have sex with women. Basically admitting to the crime. If it's the same deposition I've seen cited before anyway. And that just infuriates me as to WHY that would be considered a fair deal at all.

I mean he can fucking say he didn't do it all he wants, but we literally have him on public record, saying he bought sleeper drugs, with the express intent of using them to rape women. So I don't see how any of this should've got to this point based on that.
What drugs did he give to women anyway?
 

happyninja42

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What drugs did he give to women anyway?
I don't know specifically by name, but they were the kind that when combined with alcohol, frequently cause blackouts in the recipient, which is when he would assault them. I think the type might have varied over time, but your typical date rape cocktail.
 

happyninja42

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I'd suggest take a listen to the podcast Opening Arguments. Their most recent episode addresses this case, and why they feel it's BS on every level.
 

CaitSeith

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And that's why the prosecution shouldn't violate a suspect's constitutional rights: the ruling they put so much effort in winning in Court gets overturned in appeal.
 

Gergar12

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Since it's now known that the rich with high-powered attorneys can get away with everything, I suggest that we force every lawyer to be publically funded.
 
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Gordon_4

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I'll take a crack at it. The decision is here.

This is my personal opinion and should not be taken as legal advice. If you need such advice, please contact a licensed attorney in your jurisdiction.

In 2005, Cosby was accused of sexual assault against Andrea Constand. The District Attorney (Castor) is alleged to have looked into this, and concluded that there was insufficient evidence to convince a jury that Cosby was guilty beyond reasonable doubt. Castor then used his discretion as DA to decline prosecution. By doing this, Castor prevented Cosby from being able to use the fifth amendment's protection against self-incrimination in subsequent civil actions. By his own admission, Castor intended to remove "for all time" the possibility of prosecution. Deprived of this ability, Cosby provided four sworn depositions that contained incriminating statements. The incriminating information can be found starting on page 14 of the decision. Cosby later settled with Constand in the amount of 3.38 million dollars. In 2015, the new district attorney, Risa Vetri Ferman, decided to prosecute Cosby. Ferman asserted that in the absence of any written agreement not to prosecute, the state was not bound. The trial court agreed. Additionally, the information he provided at these depositions was permitted into trial as evidence. Cosby was convicted.

The court reversed this conviction. I can sum it up best with a quote from page 52: "when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced"

Cosby was told he wouldn't be prosecuted by the entity with the authority to make that promise. Relying on that promise, he made statements under oath that he reasonably believed he had to make (no fifth amendment right, see page 66). The new DA cannot simply come along and decide to break the agreement. Note that this does not address the wisdom of the former DA's decision. However, just because a prosecutor makes a very bad decision does not entitle the government to a remedy at the expense of the defendant's rights. Allowing Cosby to be prosecuted, however, would allow prosecutors to do an end run around the fifth amendment. The court considered the remedy of allowing a third trial where the testimony from the depositions would be disallowed. This was rejected, on the principle that when there is a due process violation (which they found here), the only fair remedy is putting the offended party as they were before the offense. The court reasoned that the actions of the first DA were bad enough that no retrial could be allowed. You can see reasoning for this starting on page 76. The reasoning staring at the bottom of page 77 and going on to "IV. Conclusion" on page 78 is too lengthy to quote, but it sums up the case nicely.

tl:dr version: The former DA made an agreement not to prosecute Cosby. The fact that a new DA decided differently does not allow them to reverse the decision.

Note there is also a question as to if several of the women who testified against him (past alleged victims) should have been allowed to do so. The court declined to answer this question because the case was moot. I will therefore not go into any analysis of this issue, other than to say that I agree with the notion that courts should not address more issues than necessary to resolve a case.

EDIT: I just want to add that people upset at this aren't wrong. It's bad things turned out this way. Had the court ruled differently, it would have potentially, as I said above, allowed prosecutors to do end runs around the fifth amendment, to people far more sympathetic than Mr. Cosby here. That is one of the parts of living in a legal system where precedent is extremely powerful.
We can take steps to prevent things like this from happening again, such as actions to restrain the power DAs have to make agreements like this. Should Mr. Cosby be in prison? Morally, yes. Legally? Not unless they have something else they can nail him on.
So if I read this right - and I thank you for posting it - basically it can be summed up as they offered a waiver of criminal conviction for a confession that would allow a civil prosecution for financial compensation. Cosby agreed and got all the sordid details down on paper. Then another prosecutor decided they wanted to be cute and pulled as Cartman would say “A Serbian Jew double bluff” and launched criminal proceedings anyway on shoddy as balls grounds and managed to score a conviction because of all the public foreknowledge an impartial jury was impossible and then a Judge on the Appeals Court has looked over this whole fiasco and said “Son, I am disappoint cus you done goofed” and overturned the conviction?
 
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CM156

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So if I read this right - and I thank you for posting it - basically it can be summed up as they offered a waiver of criminal conviction for a confession that would allow a civil prosecution for financial compensation. Cosby agreed and got all the sordid details down on paper. Then another prosecutor decided they wanted to be cute and pulled as Cartman would say “A Serbian Jew double bluff” and launched criminal proceedings anyway on shoddy as balls grounds and managed to score a conviction because of all the public foreknowledge an impartial jury was impossible and then a Judge on the Appeals Court has looked over this whole fiasco and said “Son, I am disappoint cus you done goofed” and overturned the conviction?
Only correction is that Cosby didn't agree to anything, it was a unilateral statement from the DA.

Since it's now known that the rich with high-powered attorneys can get away with everything, I suggest that we force every lawyer to be publically funded.
Horrible idea on par with using a flamethrower to remove fleas from a cat: It might work, but would create more problems in the process. Especially when there are far less disruptive ways to address the problem.

Your statement "every lawyer" would include corporate lawyers and tort lawyers. Now, if you mean "every criminal defense lawyer", which I'm going to assume you meant, that would just be a mess. People are entitled to choose, in a consensual transaction, who they wish to represent them in legal matters. A system in which all defense attorneys are dependent on the state for compensation jeopardizes that. What happens if they run up bills in excess of what the state will compensate? You either allow defendants to privately compensate them, which undermines this very system, or you risk preventing people from putting on the best defense they want to spend money on.

Also, hiring a high priced legal team is no grantee of success. Need I remind you that Harvey Weinstein is currently in prison, despite the fortune he spent on his defense?

Now, giving the public defender's office the same funding as prosecutors, that might be better.
 
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Eacaraxe

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Now, giving the public defender's office the same funding as prosecutors, that might be better.
This is the big thing. There are huge disparities in resource availability to prosecutors' offices to public defenders' offices. Last I checked, the national average is a 3:1 ratio in funding between prosecutors' offices and defenders' offices. That's just for the offices, mind; prosecutors' offices get ancillary and incidental support from police departments.

That means prosecutors' offices are better-staffed, better organized, and better supported. And, there's a substantial pay gap between prosecutors' offices and public defenders' offices. All of which means public defenders are understaffed, underpaid, and overworked for what they do, which degrades the strength of defense a public defender can levy -- while being a less attractive job that brings in lower-caliber applicants, and a lot of times that's new attorneys seeking law school debt relief because public defense qualifies for it.

That latter issue is especially noteworthy as it invokes the spectre of socioeconomics, generational wealth, and professional connections. A generationally-wealthy graduate from a high-tier law school, who graduated comparatively debt-free and could afford summer internship getting a good post-graduation CV and solid professional connections, won't need debt relief and thus will be less-inclined to seek civil service work while having a foot in the door for more-lucrative positions. On the flip-side, most graduates of modest means are going to have to seek civil service debt relief as their first priority for post-graduation employment.

In reality, public defenders are jobbers. Court's a zero-sum game; a 90%+ conviction rate means defense attorneys can expect a sub-10% success rate. That doesn't mean public defenders are out there throwing cases, it means public defenders are systemically crippled in their ability to represent defendants; or as Scalia put it in another context, one side gets to fight freestyle while the other has to follow Marquis of Queensbury rules. Most of the time, the best they can do for the resources available to them compared to their caseload is to negotiate the best-possible plea deal.

Also, hiring a high priced legal team is no grantee of success.
There are no guarantors of success, but a high-priced legal team is certainly one of the things closest to it. Case in point, OJ Simpson.
 
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Silvanus

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Your statement "every lawyer" would include corporate lawyers and tort lawyers. Now, if you mean "every criminal defense lawyer", which I'm going to assume you meant, that would just be a mess. People are entitled to choose, in a consensual transaction, who they wish to represent them in legal matters. A system in which all defense attorneys are dependent on the state for compensation jeopardizes that. What happens if they run up bills in excess of what the state will compensate? You either allow defendants to privately compensate them, which undermines this very system, or you risk preventing people from putting on the best defense they want to spend money on.

Also, hiring a high priced legal team is no grantee of success. Need I remind you that Harvey Weinstein is currently in prison, despite the fortune he spent on his defense?

Now, giving the public defender's office the same funding as prosecutors, that might be better.
Another solution: place a legal cap on how much a lawyer can charge.