Cosby's Appeal Comes Next

         There is a special place in Hell for those who cheer sending a person to prison, so mark today as a special day for the keepers of the roll in the underworld. The chorus of those cheered by the guilty verdicts against Bill Cosby deafens.

         "Guilty," the jury said, three times after brief deliberations in the second trial against the 80-year-old comedian. A man once affectionately called “America’s dad” will soon, after sentence is imposed, be a convicted felon. (Judgment does not enter in a criminal case until sentence is imposed, so he's not a felon yet)

         There is dark humor among defense lawyers when a jury returns a guilty verdict.

         “What do we do now?” one story goes. A defendant turns to his lawyer uttering this after hearing the word “guilty.”

         “You’re going to go to prison,” the lawyer replies. “I’m going home to have a stiff drink.”

         Such are the consolations the law offers amid despair.

         Cosby will no doubt fight his conviction on appeal. He has the funds to hire the best talent available. Here are issues that you can expect to hear more about.

         First, was his deposition testimony properly admissible? Normally, the admissions of a defendant are permitted under several exceptions to the hearsay rule. The statements may be against penal interest; they may also be admissions of a party opponent.

         But in this case, Cosby gave the deposition amid what sounded like assurances that the words would not be used against him in a subsequent prosecution. The trial court held that promise void. Expect appellate lawyers to challenge that ruling.

         As a practical matter, it was a mistake for Cosby to give the deposition at all. The Fifth Amendment yields a privilege against self-incrimination. Plead the Fifth. Sure, you risk an adverse inference in a civil proceeding; jurors will be told that they can hold an invocation of the Fifth against a civil litigant in certain circumstances. But better to lose a little, or even a lot, of money, then head to prison.

         Next, the law is ridiculously liberal when it comes to admission of evidence of other bad acts in sex crimes. Why this special status for sex offenses? Due process requires proof of the elements of the offense for which you are charged. We generally prohibit what is known as propensity, or character, evidence. Showing a jury that a defendant committed other bad acts predisposes the jury to believe the defendant did what he is charged with doing. Such evidence is strictly limited, except in sex cases. It makes no sense to have special rules of evidence for sex cases. The parade of accusers was prejudicial. Period.

         And what of the extended statute of limitations in sex cases?  Try defending yourself sometime against an accusation that took place, allegedly, more than a decade ago. The statute of limitations never runs in a murder case. That’s because of the seriousness of the crime, and the fact that the decedent cannot speak. Cosby’s accusers are still very much alive. Sex, unlike murder, is ubiquitous.

         Finally, the corroboration provided by the accuser’s publisher, who was permitted to testify that the accuser wanted to put allegations of Cosby’s sexual misconduct in her book, but the publisher spiked it, was most likely offered for the limited purpose of showing that the accuser wanted to make the allegation public, not for the truth of the assertion – that Cosby raped her. That’s the sort of distinction judges ask jurors to draw all the time. I have my doubts about whether jurors follow the law. This so-called constanncy of accusation evidence is a flashpoint in the law just now.

         Now that claims of sexual misconduct have captured the imagination of the chattering class, the Cosby appellate lawyers ought to take pains to educate the public about the law governing prosecution of sexual assault claims. Today it is Cosby who was laid low. Who will it be tomorrow? There’s plenty of ambiguous bumping and grinding going on in the night. Will these acts, too, be called crimes in the distant future?

         I’m rooting for you, Bill Cosby. The groupies delighting in your conviction are an angry mob. #MeToo is sated today with blood lust. It’s more than a little creepy. 



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