Bill Cosby is a free man – and much more: he is now considered innocent and can no longer be prosecuted for sexual assault. That decided the Supreme Court in the US state of Pennsylvania. It is worth studying the 79-page reasoning for the judgment more closely. It does not say that the judges consider the 83-year-old entertainer to be innocent. It just says that the criminal trial should never have existed. So, even though he had made a confession in a civil trial and although jury had found it unequivocally proven that he had drugged a woman and then sexually abused: Cosby is free, he is considered innocent, he can no longer be prosecuted. Because he has never been finally convicted.
No wonder that Cosby got out of the car after arriving home and presented the people with the outstretched index and middle fingers of his right hand: Victory, victory. His spokesman, Andrew Wyatt, picked him up from prison around 2 p.m. He posted a photo of himself on Twitter with his black power fist raised. Wyatt raised the verdict to a societal level at a press conference in the garden: “It is a message to all Americans who have been treated unfairly by the judicial system.” Cosby said nothing himself. He was silent and grinned.
As a reminder: Cosby was accused of having drugged and sexually abused the then university employee Andrea Constand in 2004. Cosby was found guilty in April 2018 and sentenced a few months later to three to ten years’ imprisonment. It was the second hearing in the case; at the first in summer 2017, the jury had declared that it was hopelessly bogged down. A judgment was only reached in the second trial. Since then, Cosby has been in a prison outside of Philadelphia.
Pennsylvania Supreme Court justices say this trial should never have happened. The public prosecutor’s office had already investigated him in 2005, but did not bring charges due to lack of evidence and dropped the case. The then prosecutor Bruce Castor had promised Cosby not to bring charges in order to induce the entertainer to testify in the civil case. Such deals are not uncommon in the US. Castor said during a recent hearing that he was hoping to bring “a little justice” to alleged victim Constand. Without a confession and sufficient forensic evidence, the chance of a conviction in a criminal case was too low. That’s why he got involved in the “no charge” deal. An out-of-court settlement was then reached in the civil process. Cosby paid Constand $ 3 million.
Cosby had confessed to the fact in a civil case
In the civil case, Cosby confessed under oath that Constand administered the sleeping pill methaqualone and then touched her “where your pants get wet”. “I didn’t hear her say anything. I kept going and got into this area that was between permission and denial. I wasn’t stopped.” When asked if he had gotten methaqualone to sleep with women, Cosby replied, “Yes.”
The confession coincided with the allegations made by numerous women that Cosby had drugged and sexually abused them. Around 60 women have now accused him. Most of the cases, however, are statute-barred, some more than 50 years ago. Only the Andrea Constand case was criminally relevant.
Cosby weighed heavily on his testimony. It was the reason why the proceedings were restarted in 2015, a few days before the expiry of the limitation period. New prosecutor Kevin Steele had applied for the post with a promise to reopen the case – which is exactly what he did. Contrary to what his predecessor Bruce Castor had agreed with Cosby’s lawyers.
The Pennsylvania Supreme Court ruled that Steele should have respected the collusion. Cosby’s confession should not have been used in the civil trial. He did not get a fair trial, as stipulated in the constitution. However, three judges, the verdict was 4: 3, then declared that they would not follow the argument. Thomas Saylor wrote that the agreements with Cosby were not binding on the subsequent prosecutor Steele. Judges Kevin Dougherty and Max Baer stated that Cosby’s testimony in the civil trial was not admissible in the criminal trial. But that was no reason not to prosecute Cosby again.
Judge: Cosby was not given a fair trial
The court also stated that it was not permissible to summon so many witnesses against Cosby in the second trial. In the first trial, only one other alleged victim was allowed to testify. In the second trial, five other women testified against Cosby. The prosecution wanted to show that Cosby had regularly misused his fame and fortune to molest women or do worse things to them. The judges saw it as an attempt to attack Cosby personally without providing any information for the case. That influenced the process unlawfully.
The trial that led to Cosby’s conviction was indeed a spectacle for the jury and the public. The alleged victim Constand was cross-examined by Cosby’s lawyers as a money-hungry fraudster and drug addicted liar; it was a perfect example of “victim shaming” disguised as questions to a witness.
Suddenly it was no longer about what had happened at Cosby’s house that night in 2004, but about the privileges of celebrities, racism and sexism, the influence of the media and social networks on a court hearing. And thus also about how impartially jury can judge someone who is so well known and who is reported about as intensively as Cosby. Cosby isn’t just any celebrity. He was also a moral authority, almost a saint in the USA.
The ruling against Cosby was the first against a celebrity in the #Me tooMovement that began in 2017 with the revelations about film producer Harvey Weinstein. He was found guilty in February 2020 and sentenced to 23 years in prison in New York. He will soon have to answer for other allegations of sexual assault in California.
Three of the seven judges voted against the verdict
While the current ruling in the Cosby case applies only to Pennsylvania state law, it does raise questions for future litigation. For example, whether and how many other alleged victims are allowed to testify in a trial. That is why the reactions to the judgment are so controversial. “It sends a shock wave through the community of survivors. I fear that fewer survivors will dare to come forward,” says Angela Rose, founder of the foundation Promoting Awareness Victim Empowermentwho campaigns for victims of sexual violence. Scott Berkowitz, President of the Rape, Abuse and Incest National Network, added. “This judgment has nothing to do with justice.” Janice Baker Kinney, one of the women who testified, told the TV station ABC: “My stomach contracts when I see that a legal maneuver is reversing everything, even though so many women have testified.”
However, there were also numerous people who showed solidarity with Cosby. Phylicia Rashad who appeared on the TV show The Cosby Show played the wife of the protagonist, wrote on Twitter: “Finally. A miscarriage of justice has now been corrected.” Cosby spokesman Andrew Wyatt said, “This is the justice that Mister Cosby fought for.” As he said that, Cosby pulled the corners of his mouth up. He didn’t have to do more, he had already presented the victory sign and black power fist.