By Christopher McIntire
In the news again are sexual misconduct
allegations against famous comedian Bill Cosby. Women are coming out of the
woodwork challenging the morality of an individual once held up as America’s
ideal family man.
How many of the allegations are true we can not
guess. At least one, Chloe Goinz, who made the claim that she was drugged and
raped at the age of 15, has been demonstrated to be patently false. Bill Cosby
was not even in town when the alleged event occurred and Chloe Gainz has
dismissed her case, wisely, to avoid a malicious prosecution claim. But how
many of the other cases are patently false, exaggerated, or true, we simply
cannot know. But this we do know, the use of his deposition at the Pennsylvania
criminal case for an alleged assault on Andrea Constand, is going to result in
an acquittal.
The filing of the 10 year old felony complaint in
Pennsylvania was based on two factors: (1) other women making similar
complaints; and (2) the civil deposition Bill Cosby gave in the case which was
settled and sealed.
As to other women’s complaints which have not
been adjudicated, the prosecution faces a difficult hurdle in presenting this
as credible evidence of a crime. The age of the uncharged complaints combined
with the financial interest of the claimants undermines any credibility of the
claimants.
And as to the deposition, if the law is followed,
it cannot come in as evidence. The use and release of Bill Cosby’s civil
deposition is an issue which that invokes the First, Fifth, and Sixth
Amendments to the United States Constitution.
In a civil case, the Fifth Amendment privilege
against self incrimination still applies. If a civil defendant is being asked
questions pertaining to conduct which could constitute a crime, he cannot be
compelled to testify. The choice is either: (1) stay (halt all the proceedings)
the entire case until the criminal statute of limitations has expired; (2)
obtain a promise from the District Attorney that criminal charges will not be
filed; or (3) testify under protective order that no use will be made of the
deposition outside of the context of the civil case.
The deposition of Bill Cosby was given under the
second and third categories. The deposition was given after the District
Attorney said he would not prosecute, and was offered under seal. Under these
circumstances, Bill Cosby had no choice but to testify in the civil proceeding
since there was no possibility of self incrimination which could be used in a
criminal case. But this only involves the Fifth Amendment.
The First Amendment promises freedom of press,
and the Sixth Amendment promises a public trial. An order sealing a court
record is generally viewed with disfavor, as it potentially violates the Sixth
Amendment and, if the press wants to publish it, the First Amendment. (Juvenile
records, of course, are always sealed.) So the media made a motion to unseal
the record of Bill Cosby’s civil case and this motion was granted under the
First and Sixth Amendments. The motion did not, however, affect Bill Cosby’s
Fifth Amendment privilege against self incrimination.
But there is more to the application of law to
fact, including considerations that should not be. The issue of Bill Cosby’s
prosecution was an electoral issue in the tightly contested election for the
office of District Attorney in Montgomery County, Pennsylvania. Both
candidates, Bruce Castor and Kevin Steele, promised to be toughest on Bill
Cosby. And the first trial judge, Steven O’Neill, who should of tossed the
deposition without too much question, held a belated hearing and refused to do
so lest he face the same voter indignation which removed former District
Attorney Brian Castor from office.
Unfortunately, in high profile cases politics can
be a very strong factor.
Nevertheless, the deposition of Bill Cosby is inadmissable
under the Fifth Amendment. Whether this ruling comes from another trial judge,
a state court of appeal, or a federal court on a petition for a writ of habeus
corpus, it will come, and Bill Cosby will be acquitted.
But before expressing indignation that Bill Cosby
will walk without jail time, consider the following: would you be willing to
testify under a grant of immunity in Florida, only to have a California
District Attorney use your testimony against you? That Bill Cosby’s celebrity
status is resulting in an unusual application of the Fifth Amendment is
disturbing; the law either applies to everyone, or it applies to no-one.
