I’m fascinated by puzzles especially challenging ones hence my interest in the ongoing case involving Bill Cosby whose TV sitcom The Cosby Show I’ve followed in my childhood. The New Yorker article, The Central Question in the Bill Cosby Criminal Case, captures the gist of the puzzle
The Pennsylvania case against Cosby shows how damaging prior-bad-acts evidence can be. Taken on its own, the case involving (Andrea) Constand (Cosby’s accuser) has obvious weaknesses. The event took place twelve years ago, and evidence rarely improves with age. Constand waited a year before reporting the alleged crime to police. Before the incident, Constand allegedly had other unpleasant incidents with Cosby, yet still continued seeing him. She received a financial settlement from Cosby years ago, which could lead his lawyer to claim that Constand had a financial motive to make her accusation. Any or all of these facts could lead a jury to find reasonable doubt.
But the complexion of the case would change entirely if other accusers were allowed to testify. The jury would certainly ask, “Could they all be lying?” Because jurors find prior-bad-acts evidence so powerful, judges generally exercise great care in deciding whether to admit it. If the judge in Cosby’s case is wise, he or she will scrutinize each of the prosecution’s proposed bad acts, and determine which may have significant details in common with Constand’s accusation. The right ruling will not involve a blanket rule to cover all prior bad acts but rather a meticulous examination of each to see if it constitutes a signature, or m.o., that Cosby replicated in the Constand incident.
The development in Bill Cosby’s case is reminiscent of the dark plot in Aleatha Romig’s new book, Insiduous. The ending grips you in the way thrillers do when somebody with a raised axe suddenly appears from nowhere on the TV screen: just when Victoria, widowed from her manipulative husband who treated her more like a whore and who she slowly murdered as a result, was sure she’d found happiness with somebody she trusts only to find too late that this somebody was out to murder her all along. Nothing is what it seems, so says the book.
Now I’m scaring myself.
But, back to the challenge in Cosby’s case
Rule 404 employs terms that are difficult to define with precision. What kind of evidence shows “intent, preparation, plan”? What does “unfair prejudice” mean? Judges interpret these kinds of statutes every day, but rarely with the kind of media attention, and the stakes, of a criminal case against Bill Cosby. How the judge chooses to define these words may well be the most important factor in the outcome of the trial of this one-time icon.
In his defense, the actor has chosen a reputably tough and good lawyer (and an ordained minister too).
Cosby’s accusers, 27 (out of a total of 60?) on the other hand have chosen a white “feminist lawyer” to represent them.
What could the court of public opinion say at this point but: Let the games begin!