#BillCosby Is Still #Guilty

Posted in: Criminal Law

At the end of June, the Supreme Court of Pennsylvania threw out Bill Cosby’s conviction for the sexual assault of Andrea Constand. When a court reverses a conviction, it is tempting to think that the liberated prisoner is actually innocent. And sometimes, the reversal does cast doubt on the former defendant’s guilt, for instance, if the reason for the ruling is insufficient evidence to support the conviction. The case of William Henry Cosby, Jr., however, did not involve that kind of reversal. The Pennsylvania high court’s decision leaves Cosby just as apparently guilty as he was when the second jury came back with a conviction in 2018 (after the first trial had ended in a mistrial).

Upon his release, Cosby declared in a tweet that “I have never changed my stance nor my story. I have always maintained my innocence. Thank you to all my fans, supporters and friends who stood by me through this ordeal. Special thanks to the Pennsylvania Supreme Court for upholding the rule of law. #BillCosby.” These words suggest that (1) Cosby is in fact innocent; (2) he has consistently maintained his innocence; and (3) the Pennsylvania court’s ruling confirmed that he was correct in maintaining his innocence. All three of these implications are false.

First, there is no reason to believe that Cosby is innocent. His prosecutor proved beyond a reasonable doubt with evidence whose character and strength have remained fully intact that he sexually assaulted his victim, Andrea Constand. The reason for the reversal is what many would call a technicality (although I tend to stay away from that label because it suggests that innocence is the only value worthy of protection in the criminal justice system, and I reject that view). An earlier prosecutor (who believed the case for guilt was insufficient) said that Cosby would not be prosecuted for the crime. Cosby, because of that statement, was unable to invoke the Fifth Amendment at the depositions that were part of his civil trial (because the promise removed the possibility of his being an instrument of his own conviction). Consequently, he incriminated himself. When a different attorney did prosecute Cosby, his self-incriminating statements from depositions in anticipation of the civil trial came into evidence. The argument that the Pennsylvania Supreme Court accepted when it reversed his subsequent conviction was thus primarily about the Fifth Amendment right against compelled self-incrimination, not innocence.

Second, Bill Cosby actually has not consistently maintained his innocence. Because of what the Pennsylvania Supreme Court construed as a prosecutor’s promise not to charge Cosby with the crime, Cosby had had to testify under oath during depositions connected with his civil trial. When he testified, he made self-incriminating statements. Self-incriminating statements, by definition, do not maintain the innocence of the speaker. Indeed, if Cosby’s testimony at the depositions fully maintained his innocence, then (a) few prosecutors would have chosen to introduce the testimony at his criminal trial, and (b) the Pennsylvania Supreme Court would not have reversed his conviction for resting in part on Cosby’s compelled self-incriminating words.

Third, the Pennsylvania Supreme Court did not, as Cosby implied in his tweet, join Cosby and his fans in their consistent protestations about his alleged innocence. Honoring the right against compelled self-incrimination rarely vindicates claims of innocence. This right in fact arguably affords the guilty the greatest protection because it is guilty people who will most reliably utter self-incriminating statements when they are immunized, as the Pennsylvania high court effectively said Cosby was when he gave under-oath statements at depositions.

We could have an important conversation about the right against compelled self-incrimination, immunity, and whether the divided Pennsylvania Supreme Court made the right decision in Cosby’s case. But in the wake of this body blow to the #meToo movement, it is worth dwelling for now on the fact that the Pennsylvania Supreme Court’s actions here do not exonerate Bill Cosby. He can tweet all day long, not unlike another self-declared sexual predator, but in the end, a jury of his peers convicted him of sexual assault based on proof beyond a reasonable doubt. And that remains true.

Posted in: Criminal Law

Tags: Bill Cosby

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