Controversy Draw Attention. As a song once written and sung by the late, great, maestro, Prince, “I can’t understand human curiosity/Controversy.” Human curiosity may certainly be ambiguous as is controversial. What should be controversial and should make every American outrage is “Lynch Mob Justice.”
The case of Bill Cosby was the most premier example of Lynch Mob Justice. From outbursts by witnesses, to possible jury tampering, to bringing forth testimony of decades old allegations in a supposed “Court of Law”, with no corroborating physical evidence), was something that would not have been allowed if the defendant were not a celebrity. Most Americans sadly, did not pay attention to this.
On December 1, 2020, the Supreme Court held oral arguments on a livestream telecast. I was part of a guest panel on the hit YouTube channel, Nicole’s View, where I gave my opinion on all the arguments that were made by both the petitioner/appellant versus the respondent/state. We were not disappointed.
There were two issues that the Supreme Court weighed in this case. First, was whether the use of five prior bad act witnesses prejudiced the defendant’s (Cosby) case versus the probative value of the testimony. Second, was whether or not a press release from the previous Montgomery County D.A. Bruce Castor, pledging that there would be no criminal charges against Cosby were biding?
Dr. Cosby is arguing that his 5th Amendment right against self-incrimination was only waived at the deposition because he was promised by D.A. Castor that there would be no charges. A deal that Castor did agree to as he saw Andrea Constand had no credibility, but he was hopeful that would make “Ms. Constand a millionaire.” Castor would attest to this in a preliminary hearing and in an affidavit he submitted on October 20, 2018.
Kevin Steele did not follow that agreement. In fact, he ran a Willie Horton style campaign on getting Bill Cosby locked up if elected. Something that a prosecutor should have not been allowed to do since attorneys must be careful with their advertisement. Nevertheless, Deputy District Attorney Robert Falin gave the argument for the state on that issue.
Falin claims that this was simply a press release, not a written agreement not prosecute.
However, agreement do not have to be in writing to be binding.
As Justice Wecht asked Mr. Falin at the hearing, “What is the implication for the thousands of promises made by prosecutors across the Commonwealth everyday or every week?”
I would also add, what is the purpose then of the 5th Amendment of the Constitution if a pledge or promise by a prosecutor isn’t taken seriously.
Cosby’s defense argues that this was an example of promissory estoppel, a common law principle that “refers to the doctrine that a party may recover on the basis of a promise made when the party’s reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise.” In Louisiana, we refer to this principal as detrimental reliance. This being that our state is based in civil law.
The state used two different prosecutors to go against Cosby’s legal arguments, which caught the attention of Chief Justice Saylor, but had already been approved by the court. At the hearing, the Supreme Court Justices, asked a few tough questions at Cosby’s attorney, Jennifer Bonjean. Justice Dougherty had even asked shouldn’t he have known better than to speak at a depo and invoke his 5th Amendment rights.
During the argument, Bojean stated, “In hindsight, we would have preferred to have seen a written agreement.” However, the Supreme Court had even more and tougher questions for the state attorneys, Assistant District Attorney Adrienne Jappe. Jappe would argue why the prior bad act witnesses under the 404(B) Code of Evidence did not prejudice the defendant.
Justice Max Baer grilled Ms. Jappe about the Commonwealth’s need to call nineteen potential witnesses, and ultimately used five that seeming did not all have a connection with Andrea Constand’s case.
“You advocated all nineteen in?”, Justice Baer said.
“We did.”, ADA Jappe said. “100, 50, is ther any point at which we’re not trying whether or not the defendant assaulted the victim, but we are rather trying whether the defendant assaulted on of the other eighteen or nineteen?” Justice Baer exclaimed.
He further exclaimed that “there was just too much and this defendant did not get a fair trial.”
Near the end of her argument, when Jappe went into graphic detail of Andrea Constand’s account of allegedly being assaulted by Cosby, Chief Justice Thomas Saylor asked “If that’s true, why’d you need the five witnesses (prior bad acts)?” (Mic Dropped.)
On that last question, our panel laughed. Of course, what happened to legendary comedian was no laughing matter.
Justice Baer was not alone in his conclusion, as even Justices Kevin M. Dougherty and Christine Donahue had questions about the prior bad act witnesses. Justice Christine Donohue questioned whether the prior bad acts witnesses were too dissimilar from Constand’s allegations. “Frankly, I don’t see it,” Justice Donohue said.
Overall, I believe that it went well for Mr. Cosby.
Lynch mobs cannot run our courts of justice, but that is sadly what organizations like #Time’sUp, and #MeToo have become these days where the allegation is enough for a conviction.
That is not how the United States Constitution works. It is based on the principles of law that include but are not limited to Due Process, Equal Protection, Impartiality, and the Presumption of Innocence. Mr. Cosby was not afforded any of these principles.
For all of our sakes, we should pray that these principles are never eradicated or else we may be the next one in court.
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. … ”Coffin v. U.S. 156 U.S. 432
–Gavin Richard is a regular contributor to B1Daily