Cosby Goes Free

 Recently, Bill Cosby was released from prison in Pennsylvania, to great shock and anger.  Not only that, the court overturned his conviction and ruled he cannot be tried again.  What happened?

 Apparently, back in 2004, Bill Cosby sexually assaulted Andrea Constand by drugging her with Qaaludes at his home and taking advantage of her while she was unconscious.  Later on, approximately a year later, she decided to try to bring charges against him.  The prosecutor at the time, Bruce Castor, felt her case was weak.  First off, she waited about a year to bring the charges.  There was no forensic evidence – which might have been collected had she come forward immediately after the incident – so it would be her word against his.  And testimony of women in similar instances with Cosby could not be admitted to support her case, as “prior bad acts” are generally inadmissible as more “prejudicial” (making the jury believe he is guilty) than “probative” (actually proving he committed the same act in this particular case).  Based on this, Castor decided not to press charges and advised Constand to bring a civil suit, suing Cosby for money, which would be paid to her directly, in lieu of a criminal case which would put him behind bars.

 Generally, a witness cannot be compelled to give testimony against himself if it would leave him vulnerable to criminal prosecution.  But with Castor’s decision not to prosecute, Cosby was now off the hook for any criminal sanctions.  This meant he could be compelled to incriminate himself in Constand’s civil suit – and he did so.  That case was settled for $3.38 million, money paid by Cosby to her.

 Later, a different prosecutor, Risa Ferman, felt she was not bound by Castor’s decision not to prosecute and brought charges against Cosby.  Moreover, the prosecution called as witnesses other women Cosby had abused in similar circumstances.  He was convicted and went to prison.

 The PA Supreme Court had two issues before it on this appeal.  First, did the trial court err in permitting these other witnesses to testify?  Second, was the prosecution barred from bringing charges against Cosby after the prior prosecutor had declined to do so?

 The PASC did not rule on the first issue, as it was moot:  it decided in Cosby’s favor for the second, which meant that not only was Cosby’s conviction thrown out and he would be released from prison, but any further prosecution would be permanently barred.  This was NOT because the PASC believed he was innocent, or because it ruled that rape is OK and thereby condoned.  It was more due to something we might otherwise refer to as estoppel.

Because Castor decided not to bring charges, Cosby could be compelled to admit, in the civil case, that he drugged and raped Constand.  That put her in the position of being able to bargain for a settlement, which she received.  At that point, however, this meant a prosecutor was estopped from bringing charges.  Having won a settlement, Constand had received a benefit from Castor’s decision not to bring charges.  This put her in the position of having mutually exclusive remedies:  she could EITHER receive money from him, OR see him go to PRISON, but not BOTH.

 The sad part about this is that normally the two are not mutually exclusive.  Had Castor brought charges, either two things could have happened.  One:  Cosby is convicted.  Two:  Cosby is acquitted.   The standard in criminal cases – where the Defendant faces fines, prison, or even execution - is beyond a reasonable doubt, something like 90% likely the Defendant committed the act.  The standard in civil cases – where the Defendant usually faces a monetary judgment, but no prison or electric chair – is preponderance of the evidence, something like 51% likely the Defendant committed the act.  So if you meet the criminal standard, by definition you also meet the civil standard, but not vice versa.

 If Cosby was convicted, his conviction would be res judicata in a civil action.  “Res judicata” means a court, after both sides have fought the issue back and forth, decided in favor of one party, so it stands as conclusively decided in any subsequent case.  In this case, the trial court in Cosby’s criminal trial decided that he did rape Constand.  He could not then dispute that if she sued him for money.  

 If Cosby was acquitted, double jeopardy would prevent him from being tried again, so he could not invoke his Fifth Amendment privilege against self-incrimination, and thereby be forced to admit, in the civil case, that he raped her.  Either way, she would win the civil suit.  But with a prior criminal trial, he might actually be convicted and go to prison.  That’s why, if the criminal case comes first, the two remedies are not mutually exclusive; they only became so because Castor would not bring charges against Cosby, and Constand then brought a civil suit without a prior criminal trial.

 I have no idea if $3.38 million was pocket change to Cosby or whether that was a substantial amount of his wealth.   There is one major benefit to settling: you get paid NOW.  Collecting a judgment is not automatic.  The estate of Nicole Brown Simpson and Ronald Goldman won a $33 million judgment against O.J. Simpson, but as yet it appears they have collected a tiny fraction of that amount.  You can bet that Constand received every penny of that $3.38 million (well, minus her attorney fees). 

 Finally, I’ll comment on the settlement itself.  Although Cosby, to this day, insists on his innocence and shows no remorse, most likely no one believes him: we know he’s guilty.   While it might satisfy our moral judgment if Cosby did spend a substantial amount of time behind bars, the monetary settlement acts as a direct benefit to Constand herself.  She can’t spend “moral satisfaction” at seeing Cosby behind bars.  That’s a very vague and intangible benefit diffused not just to Constand herself but to everyone who knows Cosby did something very evil and deserves some form of incarceration to punish him for that.  Given that these particular circumstances rendered the two remedies mutually exclusive, I’d be less inclined to be upset that Cosby’s conviction was overturned and he was released from prison, and more inclined to be satisfied that Constand won a substantial monetary settlement which benefits her, personally, as the victim of the crime.  If that causes everyone else emotional distress at the apparent injustice of Cosby walking free, I won’t be too concerned.  What matters is that Constand was compensated for his acts.