Presume Cosby's innocence, and let jury decide case
Until the witnesses testify and their credibility is assessed by the jury, Cosby remains innocent. But that presumption requires a big leap of faith for most people.
With celebrity criminal cases — like the Bill Cosby sexual assault case in Montgomery County — the case is tried and the defendant exonerated or convicted in the minds of the public long before the jury hears the evidence in the courtroom. In our 24-hour news cycle, all the "evidence" is exposed and endlessly analyzed by the media. But that is why keeping an open mind is so important. If our system of justice is to work, everyone needs to remember and respect the presumption of innocence.
Ultimately, the issue in the Cosby case is one of consent. Until the witnesses testify and their credibility is assessed by the jury, Cosby remains innocent. But that presumption requires a big leap of faith for most people.
Too often in our society, the opposite mentality prevails: a presumption of guilt. This presumption has many origins. TV shows have historically portrayed the police and the prosecutors as the good guys. Our life experience indicates that the police and prosecutors almost always are the good guys. Police are well-trained and professional. Prosecutors bring cases only when the evidence warrants it. Conviction rates are very high, usually well over 90 percent. So it's hard to overcome the presumption that someone is guilty when charged, like Cosby. But mistakes are made even by the most well-intentioned.
The point of our presumption of innocence is that, before the power of the state is used to punish someone, there is an assurance through the legal process that the person really did commit the crime. This is an essential protection of our liberty.
The problem is not media coverage. The media plays an important role in our system. The public must be informed about anything that is newsworthy. Press coverage in cases like Cosby's serves an important purpose by highlighting inappropriate behavior and intolerable actions. But the role of the press, protected by the First Amendment, is fundamentally different from the role of the judicial process. After all, if Cosby is convicted, he likely will be deprived of his liberty and sentenced to jail. While the public can and should condemn the conduct that he is alleged to have committed, that is very different from condemning the man. Only the judicial process can do the latter, and only based on properly admissible evidence, taking into account the presumption of innocence.
In most sexual-assault cases, there is not the amount of prior testimony that exists in Cosby's criminal case. Years ago, Cosby testified extensively in a deposition, and also gave a statement to the Cheltenham police department in 2005. While there is nothing wrong with the public understanding the impact of a civil deposition in a criminal case, the ultimate effect of these prior statements can only be assessed by a court applying the rules of evidence. Also, there are more than 50 other women who have said publicly that they were drugged and sexually assaulted by Cosby. But whether such evidence can be admitted is a discretionary decision by the court applying the law of evidence. All of these rules, while thought to be "technicalities," are important components in our protection of liberty.
In the end, the decision-makers are the jurors, following the law. Who do they believe? The victim — that Cosby was a predator? Or the defendant — that he is just a playboy? The jurors must base this decision not on what they read in the press but only on what is properly before them in the courtroom and only after taking into account that Cosby is presumed innocent.
These jurors will have the tough job of separating their condemnation for the alleged sexual crimes from the guilt of the individual. They can only find guilt if the evidence submitted by the prosecutors overcomes the presumption of innocence. That is exactly what the protection of liberty requires. A decision of not guilty does not mean that Cosby did not do something reprehensible, but only that the evidence does not allow a finding of a crime.
Let's all keep an open mind — and let the jury decide on guilt.
Lawrence McMichael is chair of the Practice of Law at Dilworth Paxson LLP. lmcmichael@dilworthlaw.com
Linda Dale Hoffa is chair of the White Collar Practice Group at Dilworth Paxson. lhoffa@dilworthlaw.com