What does Bill Cosby’s recent conviction mean for the current status of sexual assault cases in criminal cases, campus cases and the #MeToo movement? Cosby was first tried on the identical charges in June of 2017. That case resulted in the judge declaring a mistrial after the jury deadlocked, unable to reach a verdict for six days. But at the retrial in April of this year, the jury took only two days to return a guilty verdict. What changed? Everything. Let’s examine the legal changes and the changes in the world since the first trial.
The Legal View
Legally, the case was a completely different case the second time around. In the first trial, the judge allowed only a single witness, besides the complainant, to testify as to an alleged similar assault that Cosby had supposedly done. Although there were up to 19 potential women who could have offered such evidence the judge exercised great caution in letting in such highly prejudicial evidence. Such caution was the legal norm.
In criminal trials, such evidence is commonly known as “other crimes evidence” and is admitted with great caution only after being carefully balanced against it’s potential probative value. Although it may seem like common sense to consider a person’s past behavior in considering their guilt in a particular case, the criminal justice system has long disfavored such evidence – strongly preferring to limit evidence in a criminal case only to the specific events at issue. But in the second trial, the same judge let in not one but five additional women to testify about allegedly similar sexually predatory conduct by Cosby dating back to 1992. This nearly complete reversal of his earlier ruling badly hurt the Cosby defense team’s chances.
But the damage done to Cosby’s defense may yet provide him a victory on appeal. The judge failed to give any analysis or reasoning for his changed decision in the second trial to allow in evidence that he had refused to admit in the first trial.
The failure to make any kind of record justifying his decision gives an appeals court little help in upholding his decision. Just as the judge was arguably reckless in allowing the additional “other crimes testimony” so too was the prosecution reckless in seeking the admission of as many as 19 other women complaining of similar conduct. Be careful of what you wish for is a caution that my mentors at the U.S. Attorney’s Office taught me as a young prosecutor.
The point being don’t let your wish to secure a conviction open the verdict to reversal on appeal. At the very least, the Cosby prosecutors should have insisted on making the judge state reasons for his change of heart from the first trial. The judge’s silence invites speculation that the judge was swayed by the social revolution arising from the #MeToo movement.
The #MeToo View
In the time between the first Cosby mistrial and the retrial, the American cultural landscape shifted due to the #MeToo movement. Within the space of months, Cosby went from being a beloved entertainer on trial for old stale allegations to being yet another example of a generation of sexual harassers and predators.
In sexual assault cases prosecutors and investigators have always faced a silent presumption against the complainant. With the sweeping accusations, confessions, and resignations of powerful men in the entertainment business that presumption shifted. For the first time, a presumption of guilt arose when a man was accused. As the first famous man to be tried for sexual assault in the aftermath of the #Metoo movement, Cosby took the full brunt of this cultural change.
It remains to be seen whether his conviction will stand and whether that cultural change will continue to ripple through the investigation and adjudications of criminal sexual assault, sexual harassment and campus sexual misconduct cases.