A hurtful, cold, and heartless but necessary fact of American democracy is that even if all 60 women who have accused Bill Cosby of rape, drug-facilitated sexual assault, and sexual battery are telling the truth, Cosby’s freedom is not a victory for American Blacks as his spokesman initially claimed, it’s a brief shining moment victory for the American democratic rule of law.
The 60 puffs of smoke surrounding Bill Cosby could logically suggest that there’s a fire somewhere in his orbit. Since the 60 puffs of smoke are accusations of rape and sexual assault, human emotions make it difficult for many and impossible for others to see any justice in Cosby’s freedom from prison last week. Not only was Cosby’s freedom last week justice for him it was also justice for the 60 women accusers, a rare hurtful and heartless justice but still justice nonetheless.
Cosby’s freedom is sweet justice for him and imperfect justice for the 60 accusers for one simple reason, while it might appear to some that Cosby has committed numerous crimes Bill Cosby has not been convicted of any crime!!! Technically Cosby has been tried twice for drugging and sexually assaulting only one woman Andrea Constand. The first trial ended with a deadlocked jury, during the retrial in addition to formally being tried for sexually violating Constand Cosby was spiritually tried for sexually violating 5 additional women from the 60 accusers, Janice Baker-Kinney, Janice Dickinson, Heidi Thomas, Chelan Lasha, and Maud Lise-Lotte Lublin.
All 5 women, who can no longer seek criminal justice from Cosby due to statute of limitations, testified that Cosby sexually violated them in the same manner as he did Constand. Their testimony is one reason why Cosby’s freedom is justified. Any woman who comes forward with a charge of sexual abuse that occurred yesterday or 100 years ago must be taken very seriously but must not be taken for a fact!!! Taking women seriously means hearing their information and taking every humanly possible step to help them prove the truth of it.
Unfortunately, none of the 5 women were able to come forward around the time of the alleged incidents, and since they occurred over 15-20 years ago, independent 3rd party analysis is difficult to impossible. One accuser said during an interview with MSNBC’s Joy Reid that due to memory loss she could not recall any details of her encounter with Cosby but when she heard the stories of what happened to others “I figured that’s what happened to me” This very well may be what happened to her but no credible 3rd party analysis could determine Cosby’s guilt or innocence based solely on what an accuser figures. None of these 5 women’s stories have had 3rd party law enforcement or judicial analysis causing Cosby’s lawyers to credibly question why their testimony was allowed in the 2nd trial.
Although Constand waited for a year after her alleged Cosby rape she eventually did seek 3rd party analysis. After that 3rd party analysis 16 years ago, by then-prosecutor Bruce Castor, Castor doubted that Constand could win a criminal judgment against Cosby, doubt he evidently was correct about since the first trial without the testimony of 5 legally questionable witnesses ended with a deadlocked jury, but he thought in civil court where a lower bar of proof is required she could win a civil judgment against Cosby. As a result, Castor did what federal, state, and municipal prosecutors do every day, by using their legal leverage to force an alternative settlement for a victim and alternative penalty for a defendant outside of the criminal court system. Most times prosecutor leverage takes the simple form of “do x or I will prosecute you in criminal court”, in the Constand case Castor informed Cosby that he would not then or ever in the future seek to criminally prosecute Cosby for the sexual assault or rape of Andrea Constand.
By committing that Cosby would never be criminally prosecuted for sexually assaulting or raping Constand, Castor knew he would be making it impossible for Cosby to assert his 5th amendment right not to answer truthfully any question in civil court proceedings that might prove his guilt. It was during pre-trial civil court deposition questions, where Cosby was forced to answer all questions regardless of how the answers impacted him because then-prosecutor Castor granted him immunity from prosecution, made the now-infamous admission that in the past he had provided Quaaludes to other women, not to Constand as the media keeps wrongly implying, with whom he wanted to have sexual intercourse.
Cosby admitted he gave Constand Benadryl, not Quaaludes, which he claims she voluntarily took to calm her nerves after arriving at his home upset and complaining she had not been sleeping well. Castor’s decision to grant Cosby immunity from prosecution worked the way he intended. Based on Cosby’s answers to pre-civil trial deposition questions, Constand decided not to proceed to a civil trial and accept a $3.4 million out-of-court settlement for any wrong done to her and enabling Cosby’s freedom from a potential loss in a civil trial.
The answers to the pre-civil trial deposition questions made possible because Castor granted Cosby immunity were so satisfying to Constand and so damaging to Cosby, that it made the out-of-court settlement possible. Castor’s immunity would not only enable Cosby’s freedom from a civil judgment, but it would also ultimately lead to a brief shining moment for the rule of American law, albeit at the pain and sacrifice of possible sexual abuse victims, Cosby’s freedom from prison. Because Cosby’s freedom means that the principle that makes America the greatest democracy to exist in human history has been upheld in both word and deed.
In America a citizen never has to prove their innocence, the government, someone or something has to prove a citizen’s guilt. This principle is responsible for the 5th Amendment to the U.S. Constitution. The 5th Amendment protects all American citizens against self-incrimination and also requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property.” While it’s illegal to tell a lie to hide a crime one has committed, it is legal for one to withhold the truth that reveals a crime one has committed. When Cosby was put on criminal trial twice using evidence created as a result of Cosby being forced to testify against himself in a separate civil court pre-trial deposition, both the U.S constitutional mandates of “due process of law” and protection against “self-incrimination” were violated.
During the 1st trial that ended with a hung jury, the prosecution violated Cosby’s due process of law and his 5th Amendment rights by using Constand’s testimony and Cosby’s self-incriminating answers that Castor’s immunity forced in civil pre-trial depositions. Cosby’s lawyers creditably raised questions about the legality of Constand testifying. Since the $ million civil pre-trial settlement Constand agreed to stated that she would cease all future claims against Cosby, and it also included a non-disclosure clause that prevented both Constand and Cosby from ever publically discussing or disclosing any details of the incident.
During the 2nd trial, the prosecution repeated violating Cosby’s 5th Amendment rights. And to avoid another she-said he-said hung jury the prosecution added 5 witnesses that lacked appropriate 3rd party verification of their claims against Cosby, and in doing so the prosecution doubled down on violating Cosby’s right to the “due process of law.” Due process of law means a fair trial conducted under fair rules to both the plaintiff and defendant. One thing the American Constitution is very clear about, a legal destination can never be reached by or through an illegal route. No matter how guilty Cosby appears, if his guilt is not determined by a process that includes rules that are fair to all parties involved and recognizes his 5th Amendment rights, then all American’s rights are at risk.
If Bill Cosby had remained in prison because of the unconstitutional criminal court proceedings that placed him there, it would have been equivalent to American democracy being locked-up behind bars of injustice. Regardless of how guilty any American citizen appears to be, if their guilt is not established through a constitutionally legal process American democracy dies!!!
Because if Pennsylvania’s Supreme Court had failed to overturn Cosby’s conviction, it would have established the legal precedent that a government agency or official could legally mislead an individual into revealing self-incriminating information, under the false guise that it will never be used to prosecute the individual, and then at a future point use the self-incriminating information to penalize or prosecute the individual. The Pennsylvania Supreme Court ruled that this was what was done to Cosby and referred to it as “bait and switch.” The court’s failure to vacate the guilty verdict would have also established the legal precedent that if an individual looks guilty enough but no legal remedy for relief for the victim or penalty for the accused exist, it’s ok to violate the rule of law and let the rule of emotion invent a penalty for the accused and relief for the victim.
Cosby’s freedom represents and guarantees every American’s freedom because it means regardless of how much guilty smoke surrounds an American citizen, the fire must always be identified and verified through a consistent legal and fair-to-all 3rd party process. As former U.S. Attorney for the Eastern District of Michigan from 2010-2017, Barbara McQuade said: “Enforcing the constitutional right to due process sometimes leads to awful results. But if the protection is to work for any of us, it must be enforced for all of us.” In other words, the rule of law means justice for all, the rule of emotion means injustice for all.
If he is guilty, Cosby’s freedom highlights the rare downside to the American democracy principle, which says the rule of law should err on the side of letting 100 guilty individuals go free before it imprisons 1 innocent individual. All or any of the 60 women who have been sexually violated by Cosby and are now left with no legal recourse to seek legal, emotional, or monetary relief from him, join the ranks of Americans who sacrificed their lives in the Revolutionary War, the Civil War, World War 2 and the Civil Rights Movement as LIVING MARTYRS who have sacrificed their emotional and physical well-being for American democracy!!!