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Freindly Fire


Not Guilty, but Also Not Innocent?

by Chris Freind
 

When there is a closely contested election, the recount takes place immediately. Not months or weeks later, and certainly not a year past the election, but as soon as possible. That way, the results can be certified in a reasonable amount of time. Even more important, irregularities can be investigated while they are still fresh in the minds of witnesses.

Likewise, after a car accident, the first two things we do " immediately " are call the police, and notify our insurance company. We don’t wait until next week or the following month, and if we decided to report the crash a year later, we’d be laughed out of the room. The rationale is obvious: Recounting exactly what happened is always " always " most accurate when details are front-and-center in our consciousness. Conversely, memories become fuzzier as each day passes, and we quickly reach a point where the event fades into a blur as critical details become lost to time.

So it’s no surprise that Bill Cosby wasn’t found guilty in his sexual assault trial. After all, his accuser, Andrea Constand, chose not to immediately report the incident to police after it allegedly occurred. Instead, she waited. And waited. And waited some more. Ultimately, it took Constand a full year to file a criminal complaint, which, as she admitted, led to memory lapses and fuzzy details. And that, combined with other Constand inconsistencies, gave jurors enough reasonable doubt to bring about a deadlock, and a mistrial.

Welcome to O.J. Simpson, Part Two, where a not-particularly nice person did some not-particularly nice things, but where, despite significant probability that illegalities occurred, wasn’t a case compelling enough to warrant a conviction. The difference is that, in the O.J. trial, prosecutorial incompetence led to credibility loss, thus creating reasonable doubt for Simpson. In the Cosby case, Constand herself was the biggest pitfall to achieving a guilty verdict, as her credibility declined throughout the trial.


Here is look at the trial, and what we can expect in the future:

1) The person who comes out smelling like a rose, as usual, is former Montgomery County District Attorney Bruce Castor, who declined to press charges in 2004 due to lack of evidence. Did he want to? Yes.

“Back then, the desire on our part to move forward was pretty strong,” Castor said. “The problem with the case was she waited a year until she told police about it.” Because of that delay, no physical and forensic evidence could be gathered, no blood, urine and fingernail samples could be taken, and no search warrant of Cosby’s home could be issued.

Therefore, despite his belief that Cosby had lied during questioning, Castor decided to pass on charging him. And yet, despite the fact that Castor’s common-sense decision was just validated, he was on the receiving end of misguided criticism from Constand’s legal team that he had “dismissed” her in 2005. Nothing could be further from the truth.

So if a remarkably successful D.A. didn’t think he could convict Cosby a year after the encounter, what made current D.A. Kevin Steele think he could win 13 years later?

2) In addition to Constand’s year-long delay in reporting the alleged assault, her testimony was filled with inconsistencies. Two glaring ones that likely affected the jury were: A) Stating that she had never been alone with Cosby before (when, in reality, she had been alone with him in a hotel room before their encounter at Cosby’s house), and B) Stating that she had cut off contact with Cosby after the incident, when in fact they had communicated via 72 phone calls, 53 of them initiated by Constand.

Additionally, Constand, several months after the incident, requested tickets through Cosby’s representatives to attend one of his shows (along with her family). Finally, Constand admitted to freely taking the pills Cosby offered her " as opposed to having them discreetly slipped in her drink.

Does any of this make Constand a liar, and does it mean that she wasn’t sexually assaulted by Cosby? Absolutely not. Constand may well be telling the truth, but as they teach in law school, it’s not what you know " it’s what you can prove.

Constand’s delay in filing a police report, and her numerous inconsistencies, possibly along with her appearance in court " like it or not, appearance matters, and showing up in sneakers and casual clothes was perhaps a mistake " combined to poke enough holes in her credibility to create a hung jury. While anything can happen in the future, and Cosby is by no means out of the woods should the case be re-tried, the odds of getting a different result look dim.

3) Constand received a financial settlement from Cosby after filing a civil suit, which was unknown to the jury. And criminal charges were filed on the last day before the statute of limitations expired (12 years after the incident). Again, those things, in and of themselves, do not mean that her allegations did not occur. But in the court of public opinion, her credibility was significantly damaged, as many viewed her actions as rooted in the pursuit of headlines, book deals and another payday.

Perception is reality, and the perception that Constand has ulterior motives " 13 long years after the fact " hurts all other women victimized by sexual predators because, in a guilt by association way, their credibility also takes a hit. That’s not fair, but if it continues to be the public’s mindset, the decision to retry Cosby should be weighed as to whether it will do more harm than good.

4) Where does it go from here?

District Attorney Steele made Cosby the banner issue in his campaign, and is now faced with a reap-what-you-sow situation. If he punts on re-trying Cosby, he risks walking away a loser " though a hung jury is certainly better than an acquittal. If he pursues Round Two and wins, he’s a triumphant hero who can write his ticket. Yet if he is defeated again " the most likely outcome " he’ll be pegged as a two-time loser with zip to show, having failed to deliver on his signature campaign promise. Many will see him as nothing more than a media hound hungry for whatever case will catapult his political career to the next level.

Justice should be blind to politics, but Steele, in choosing to make them one and the same, has boxed himself into a conundrum. How ironic that Castor " whom Steele defeated " may yet have the last laugh.

Politics aside, there will be another huge outlay of taxpayer dollars should there be another trial " a trial that has no better chance of being decided one way or the other than the first. Cosby, at 79 years old and a decrepit old man, poses no danger to society. Since he will be hounded by never-ending civil suits for the rest of his life " likely paying out millions " and has seen his reputation plunge from “America’s Dad” to dirtball in the eyes of millions, perhaps it’s time for D.A. Steele to move on, as he clearly has more pressing, albeit less headline-inducing, cases to try.

In the meantime, Cosby, at least for now, can say, “Hey, hey, hey! Jell-O Puddin’ Pops for the jury today!”

And the rest of us are left lamenting about how our beloved Dr. Huxtable went so terribly wrong.

Chris Freind is an independent columnist and commentator based in Philadelphia. He can be reached at CF@FFZMedia.com.


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