Sunday, June 18, 2017

Hey hey hey!

The Bill Cosby trial reminds me of a line a friend told me her former employer used.  He was a criminal lawyer, and when he lost a case, he'd always return to the office to say "Justice prevailed!"

I learned, as a legal assistant, that the courts only did things right when the client you represented, won.  Otherwise it was a gross miscarriage of justice and sign of the moral decay of America.  Or something. At least the clients always thought that way.  It was never what they deserved, or a reasonable outcome based on the facts and the law.

So is Bill Cosby guilty, still?  Not legally; well, not yet, anyway.  Tout le internet (well, the few websites I frequent) insist justice was once again denied.  Camille Cosby would beg to differ, and no doubt she will be castigated for her frank opinions (I even read an internet post castigating a former actor on "The Cosby Show" for going to court with Mr. Cosby on the first day of trial, when Mrs. Cosby was conspicuously absent.  Apparently friends of Mr. Cosby are traitors to the rest of us, or something.  Sort of like the outrage directed, for very different reasons, at Megyn Kelly.  Maybe enough is enough; then again, many people probably won't think so.)

Mrs. Cosby's reaction to the hung jury and mistrial verdict sound familiar to me.  She would agree that justice prevailed.  Many others don't think so.  But we don't sit in the courtroom; we don't hear the evidence; we don't carry the burden of the decision.  The Castile shooting case is in the same boat, unfortunately.  It seems perfectly clear the jury decided a black man is inherently dangerous, and police have a superior duty to shoot first and ask questions later, because you never know, right?

Did Bill Cosby equally escape justice because of "rape culture"?  That seems to me rather less well-established.  After all, many were convinced Cosby's lawyers had given up when they didn't put on a defense for their client.  But they knew what the non-lawyers didn't:  the burden of proof is on the state.  There is no burden on the defendant to prove he is not guilty.  The state failed to meet its burden.  If there is fault here, it is on the lawyers who brought this case.

Vox has a typical analysis of a jury trial:  typical, because it is subtly wrong.

After six days of deliberations regarding accusations that comedian Bill Cosby drugged and sexually assaulted a woman, a jury in Pennsylvania could not come to an agreement on whether he drugged and sexually assaulted Andrea Constand, resulting in a mistrial, the New York Times reports.
The jury asked, at one point, for a definition of "reasonable doubt."  What they were asked to decide was not, did Bill Cosby drug Andrea Constand and assault her, but did he do these things without her consent?  Consent is a key element of assault law.  The simple tort of assault is an unwanted and offensive contact.  So bumping into someone on the street isn't assault, but going out of your way to grab someone's butt, for example, is.  The question of what is "offensive contact" discriminates one from the other, and even when someone grabs your butt in a crowd, it can still be an assault (whereas if you don't want to be jostled by crowds, stay out of them).  The jury's question pretty clearly went to the issue of whether or not the prosecution had made its case, and the jury's decision was:  no, they hadn't.  They couldn't agree on whether the elements of the crime had been proven, not whether the acts alleged had occurred.  The jury, in other words, couldn't decide how to define the acts alleged; or maybe even if they believed they had occurred.  Vox has already made up its mind what happened and who is guilty; the jury didn't have that luxury, and had the burden of following the law.  That's why they asked for a definition of a term of law.

The jury did its job as it saw fit.  The prosecutors are the ones who failed the alleged victim.  If there is an injustice in this case, it is in their failure, not the decision, or inability to reach a decision, of the jury.


  1. As a non-lawyer, it's always interesting to learn that it's a lot more complicated than a TV courtroom drama. Especially when you can figure out the reasons it's as it is. I wonder if some of the outrage is due to it not being so cut and dried and wrapped up in 40 minutes, between commercial breaks.

    The rejection of a presumption of innocence unless found guilty by a lot of people is disturbing.

  2. The trial lawyer's responsibility is to convince the jury to accept your version of the facts and the law. I'm a bit surprised the prosecuting attorneys aren't catching more shit for losing a case when the defense didn't even bother to mount a rebuttal, but just sat down confident the State hadn't met its burden.

    So blame "rape culture" or the jury (same thing) or Cosby, but don't put the responsibility where it belongs: on the lawyers for the prosecution. I don't want to jump up and down on them, but they screwed up.

  3. Adding: the jury asked for evidence to review, and asked for clarification on the definition of "reasonable doubt," which definition would have been part of the charge from the court (the jury answers questions put by the court, it doesn't just decide "Guilty!" or "Not guilty!" based on some vague notion of culpability). My experience is the entire trial revolves around the questions the judge makes the jury answer (in civil trials, that's a whole discussion between lawyers and bench before the case goes to the jury. I'm not sure about criminal ones, but I expect it's much the same.).

    So what questions was the jury asked to answer, and why couldn't they answer all of them? "Rape Culture"? Or something far more particular? People who know nothing about trials blame everyone else for not coming to the conclusion they did from reading a newspaper account or two.

    But that's why we have trials, not verdicts based on public opinion polls.