The Bill Cosby Verdict: Why I’m Worried

As predicted in this column several weeks ago, Bill Cosby was convicted of sexual assault against Andrea Constand.

It’s not that her case was so strong.  She’d waited to make a complaint, contacted him many times after the alleged assault, and brought her parents to see him perform after the criminal act.  What condemned Cosby was the fact that the judge let five other women tell similar stories of having been drugged and then sexually assaulted by Cosby.  Also deemed admissible was the fact that Cosby paid Constand $3.38 million in a civil settlement over the same allegations.

This new approach by the judge (the same judge as in the first case) sealed Cosby’s fate.

I’m not lamenting the fact that Cosby was convicted.  In real life, that many complaints from that many women over that span of time tends to make anyone believe he, in fact, was a serial sexual abuser and should be punished.  I’m thrilled the verdict may give more women the courage to speak out against their abusers, no matter how powerful or popular.

But here’s the problem.  Criminal courts don’t work the way normal life does.  They’re not supposed to.  By that I mean, people don’t just sit around a table debating what they heard in the street, what they think they know about a person, and what they think is fair in the situation — there are specific rules of law, processes, and presentations.  Our country chose not to adopt methods like the Star Chamber of England in the 1600s, vilified for using arbitrary methods and doling out severe punishments.

We, as Americans, subscribe to the bedrock concepts of due process, proof beyond a reasonable doubt, and the presumption of innocence.

Each allegation against a suspect must be considered on its own merit, not lumped together with past crimes or bad acts that the accused may have committed.   Otherwise, think about it, once a shop-lifter, always a shop-lifter; once a burglar always a burglar.   If you used drugs in the past, you’re probably guilty now if charged with possession.  People make mistakes, but they do change and, in spite of their past, may not be guilty of the crime for which they presently stand charged.   If a jury were allowed to know of every bad act a defendant is alleged to have committed, the presumption of innocence would disappear.

As the system stands now, the jury is allowed to hear a portion of an accused’s past.  It’s up to a judge to carefully weigh what’s enough to protect the presumption of innocence and what’s too much.

Generally, a hearing is held outside the presence of the jury where the judge decides what a jury will be permitted to know about the defendant’s history should he take the stand.  And even if the defendant does not take the stand (as in the Cosby case), the jury is allowed to hear some information about prior “bad acts” if they fit in a particular set of narrow exceptions such as establishing the identity of the defendant, modus operandi, or lack of mistake.

The case that set these standards in New York was People v. Molineux, decided in the early 1900s.   Molineux was tried for mailing a bottle of “Bromo-Seltzer” containing cyanide to an enemy, later causing a third person’s death.  Prosecutors introduced evidence that they believed Molineux had killed a romantic rival in earlier years in a similar manner — mailing a bottle containing cyanide to his house.  Pretty damning, right?

After his conviction, the court of appeals ruled it was wrong for the jury to have known of the prior allegation.

A criminal case should be tried on the facts and not on the basis of a defendant’s propensity to commit the crime charged.  It is axiomatic that propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant’s prior crimes rather than on the evidence (or lack of evidence) relating to the case before it. We have repeated this theme throughout the last century.

Read that last sentence again — that means the 1800s.  That’s how tried and true this principle of law is and how important it is to maintaining the presumption of innocence.

I anticipate that Bill Cosby’s appellate lawyers will make this the center of their appeal — that Judge Steven O’Neill let five women take the stand against Cosby regarding crimes for which he was never prosecuted.  A jury would naturally conclude Cosby had the propensity to commit such crimes.  (Yes, there were at least 59 women who made similar complaints against Cosby and the judge probably thought himself temperate in limiting it to only five.  Still, five is a lot for a jury to hear.)

If the higher court upholds the lower court’s decision, it will be a significant blow to the centuries-old approach of limiting the bad information a jury gets to know about a defendant who’s supposed to be judged on his present actions, not his past.

This harms everyone.

Contrary to the pundits’ opinions that the Cosby guilty verdict is only a flash in the pan and not the start of a huge wave of securing guilty verdicts of people accused of sexual crimes — I see the opposite.  I see a slippery slope of admitting evidence that shouldn’t come in, of jurors shifting the burden of proof to the defense to prove consent instead of the prosecutor proving lack of it, and of jurors in the spirit of the #MeToo movement assuming guilt rather than innocence.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.