America’s Dad
Bill Cosby is the fallen icon of comedy and fatherhood who turned out to be a drug inducing rapist. He was released from prison on Wednesday. It was a shock release – shock to those who thought that Cosby, with a long hidden history of drugging and attacking women, had finally been brought to justice. And I bet it was a shock to Cosby as well – though he and his counsel played off the decision as if they truly believed justice had prevailed.
There doesn’t seem to be much question that a man that many, including myself, admired for decades, was privately abhorrent. The evidence is too strong, the number of women willing to accuse him too long, and the stories all too similar to be somehow “made-up”. It’s clear to the world he did what they say he did. He used his good name and influence to lure younger women to his home, and then he drugged and attacked them.
America’s “Dad” is a pervert. It certainly is a sign of our times. But when you get through the disgust and betrayal, there is one more fact that may go unnoticed. Bill Cosby’s lawyers were right.
The Fifth
The Fifth Amendment is familiar to everyone. You have the right to refuse to testify against yourself. You cannot be forced to risk criminal punishment by answering question “against your interest”. We all know the Miranda drill: “you have the right to remain silent, anything you say can be used against you in a Court of Law”.
The exception is well known after years of Trump subordinates and the Mueller Investigation. If you have “immunity” from prosecution then those words can’t be used to convict you, and you can be compelled to testify. We hear about this process daily. The Trump Organization Chief Financial Officer Allen Weisselberg seemed to be on the verge of an immunity deal, in exchange for incriminating testimony against the Trumps. He finally turned that “deal” down, and now faces criminal charges himself.
Immunity
Cosby was never offered immunity. But the Pennsylvania Supreme Court said he was put in the same position by the then District Prosecutor Bruce Castor. That name may be vaguely familiar. Castor was the lead defense attorney in the second Donald Trump impeachment trial. You might remember him for seeming “eccentric”, so much so that Senators who supported Trump caucused immediately after his opening statement to try to “clean” things up.
Castor made a public declaration that he would NOT prosecute Cosby. In fact, he put out an official media release to make sure everyone, including Cosby and his lawyers, would know. By making that decision, he fully intended to remove Cosby’s Fifth Amendment protection for a civil proceeding. Cosby would no longer have “the right to remain silent”. Under pain of perjury he would be required to answer questions in the civil trial, where he was being sued for the same kind of actions.
Cosby did answer questions in civil court, answers that did in fact incriminate him in the future criminal action. He was charged by a later prosecutor who didn’t feel bound by Castor’s decision. Cosby’s own testimony in the civil case WAS used as evidence in the criminal case where he was convicted and sentenced to ten years in jail.
Court of Public Opinion
No one believes Bill Cosby is innocent. But if Cosby’s conviction was allowed to stand, then any time Prosecutors couldn’t get a possible criminal to answer questions, they could simply refuse to prosecute – then change their minds after some civil case when the suspect was required to testify without the Fifth Amendment shield.
It’s hard to imagine anyone who has so squandered the public trust as Bill Cosby. We’ve been let down before: Jared the Subway spokesman, PeeWee Herman the children’s show host, the Today Show’s Matt Lauer. But none of them set themselves up as such a cultural icon as Cosby. From the sweaters to giving advice to young Black men, Cosby won his spot in America’s consciousness. And now we know what he was doing to women, at least sixty that have come forward, during his comedic career. No one is pushing to get Cosby back on TV, or on the stage.
He will slink away in shame. Folks will speak with outrage about what the Courts did. But the real failure in this case was not Cosby’s lawyers, nor the prosecutors who followed Castor. And it’s really not Castor’s fault either. To give him the benefit of the doubt, he was trying to clear the way for a successful civil action when he didn’t see a winnable criminal case.
Cosby characterizes this as “justice for all Black men”. But that doesn’t in any way alter what he did. The world won’t see him as a victim. And certainly the sixty women lost once again. The only winner: the Fifth Amendment and procedural justice.
