Bill Cosby: Get Ready For The Acquittal

In the news again are sexual misconduct allegations against famous comedian Bill Cosby. Women are coming out of the woodwork challenging the morality of an individual once held up as America’s ideal family man.

How many of the allegations are true we can not guess. At least one, Chloe Goinz, who made the claim that she was drugged and raped at the age of 15, has been demonstrated to be patently false. Bill Cosby was not even in town when the alleged event occurred and Chloe Gainz has dismissed her case, wisely, to avoid a malicious prosecution claim. But how many of the other cases are patently false, exaggerated, or true, we simply cannot know. But this we do know, the use of his deposition at the Pennsylvania criminal case for an alleged assault on Andrea Constand, is going to result in an acquittal.

The filing of the 10 year old felony complaint in Pennsylvania was based on two factors: (1) other women making similar complaints; and (2) the civil deposition Bill Cosby gave in the case which was settled and sealed.

As to other women’s complaints which have not been adjudicated, the prosecution faces a difficult hurdle in presenting this as credible evidence of a crime. The age of the uncharged complaints combined with the financial interest of the claimants undermines any credibility of the claimants.

And as to the deposition, if the law is followed, it cannot come in as evidence. The use and release of Bill Cosby’s civil deposition is an issue which that invokes the First, Fifth, and Sixth Amendments to the United States Constitution.

In a civil case, the Fifth Amendment privilege against self incrimination still applies. If a civil defendant is being asked questions pertaining to conduct which could constitute a crime, he cannot be compelled to testify. The choice is either: (1) stay (halt all the proceedings) the entire case until the criminal statute of limitations has expired; (2) obtain a promise from the District Attorney that criminal charges will not be filed; or (3) testify under protective order that no use will be made of the deposition outside of the context of the civil case.

The deposition of Bill Cosby was given under the second and third categories. The deposition was given after the District Attorney said he would not prosecute, and was offered under seal. Under these circumstances, Bill Cosby had no choice but to testify in the civil proceeding since there was no possibility of self incrimination which could be used in a criminal case. But this only involves the Fifth Amendment.

The First Amendment promises freedom of press, and the Sixth Amendment promises a public trial. An order sealing a court record is generally viewed with disfavor, as it potentially violates the Sixth Amendment and, if the press wants to publish it, the First Amendment. (Juvenile records, of course, are always sealed.) So the media made a motion to unseal the record of Bill Cosby’s civil case and this motion was granted under the First and Sixth Amendments. The motion did not, however, affect Bill Cosby’s Fifth Amendment privilege against self incrimination.

But there is more to the application of law to fact, including considerations that should not be. The issue of Bill Cosby’s prosecution was an electoral issue in the tightly contested election for the office of District Attorney in Montgomery County, Pennsylvania. Both candidates, Bruce Castor and Kevin Steele, promised to be toughest on Bill Cosby. And the first trial judge, Steven O’Neill, who should of tossed the deposition without too much question, held a belated hearing and refused to do so lest he face the same voter indignation which removed former District Attorney Brian Castor from office.

Unfortunately, in high profile cases politics can be a very strong factor.

Nevertheless, the deposition of Bill Cosby is inadmissable under the Fifth Amendment. Whether this ruling comes from another trial judge, a state court of appeal, or a federal court on a petition for a writ of habeus corpus, it will come, and Bill Cosby will be acquitted.

But before expressing indignation that Bill Cosby will walk without jail time, consider the following: would you be willing to testify under a grant of immunity in Florida, only to have a California District Attorney use your testimony against you? That Bill Cosby’s celebrity status is resulting in an unusual application of the Fifth Amendment is disturbing; the law either applies to everyone, or it applies to no-one.