Are there some crimes that are so horrendous that we need to abandon general concepts like the presumption of innocense, due process and procedural fairnessto deal with them?
In the century after the Civil War, southern states held that a Black man initiating contact, even just conversation, with a White woman was such an offense against public decency that all legal protocols were simply pointless. Torture and lynching, without charges, without evidence, except the indisputable accusation of a White woman, without any opportunity for defense arguments or cross examination, were the appropriate “legal” responses to such horrific, alleged, conduct by Black men. And Black children - Emmett Till was tortured, mutilated and murdered at the age of 14 after being accused of speaking too “familiarly” to a White woman (who retracted the accusation many decades later).
The southerners who developed this legal approach saw themselves as the cream of the crop of social development of the White race. They announced that such extra-legal processes were essential to protect the flower of White womanhood, the mothers of the superior race.
The civilized world rejected this southern legal approach. Even as Republican gerrymandering gave us increasing domination of the Senate, our laws and our Courts protected, and expanded the rights of all people accused of crimes. We expanded the rights of women to control their own reproduction, to escape abusive marriages, to control their own financial decisions and assets, to marry whom they chose, and even to share in the wealth that commercial sports operations generate for “non-profit” universities.
Last week’s expressions of outrage about the Pennsylvania Supreme Court’s 6-1 decision in the Bill Cosby case is an unsettling lesson about how we have gotten to talking about rights.
But in recent years, the old southern concept that women, at least White women are frail creatures, needing protection FROM the legal system, has begun to ooze into the politics of women’s rights. Last week’s expressions of outrage about the Pennsylvania Supreme Court’s 6-1 decision in the Bill Cosby case is an unsettling lesson about how we have gotten to talking about rights, and the need to deprive some accused men of rights that are generally considered sacred in our legal system.
The Pennsylvania Supreme Court’s opinion is 79 pages long. On page one, the opinion states that the problem in the case is prosecutorial misconduct that interferes with fundament Constitutional and Common Law principles. Then there are more than thirty pages devoted to close examination of the facts in the case. There isn’t a single sentence in that thirty pages which criticized the woman who’s accusations led to the criminal charges, or criticized any of the women who testified against Cosby.
The opinion then goes on for more than twenty pages discussing the long established legal principles, written into our Constituton, and some ante-dating the Constitution, governing how defendants must be treated in criminal cases, and how prosecutors are to behave. The law is settled that prosecutors have duties to the society that employs them and to the members of their communities against whom they bring charges. Duties of fairness and due process. Duties imposed, in part by Constitutional protections against tricking defendants into testiffying against themselves.
In the Cosby case, the prosecuting D.A. believed the accusing victim. The D.A. also believed, and has testified consistently, that he did not believe the available evidence could support a criminal conviction. So the D.A. decided to help the victim get compensation in another way. The D.A. announced a formal decision that the state would not bring criminal charges against Cosby. This announced, formal position on the part of the government, meant that Cosby was protected from prosecution, and therefore, nothing he said under oath would be subject to 5th Amendment protection against self-incrimination. If there is no possibility of prosecution, there is no “incrimination” to be protected against.
The D.A.’s decison was meant to help the victim in her civil suit against Cosby. And help her it did. Because his 5th Amendment protection had been nullified, the victim’s attorneys were able to ask Cosby all sorts of questions in deposition which would otherwise have been objectionable. Cosby’s resulting answers led to a multi-million dollar settlement of the case.
It may be that no dollar amount is sufficient to compensate for a sexual assault. But the D.A.’s goal was to get the victim at least some compensation for her suffering. And she took it.
The D.A. lived with the decision he made, for years, until he moved on to a judgeship (normal career path for a D.A.). He was succeeded in office by his principal deputy, who had been involved in the Cosby investigation, the decision to not prosecute, and the decision to help the victim, by taking a position guaranteeing no prosecution.
But that principal deputy, also had a career path and political goals. Going after a wealthy Black man who had abused a White woman was a natural career making move in a conservative state. The deputy D.A., who moved up to D.A. when the boss became a judge, was unconcerned about the government decision to evade Cosby’s 5th Amendment rights, and thus brought criminal charges based on the testimony which would have never been given but for the government’s promise of non-prosecution.
After one failed attempt to get a conviction, the new D.A. tried a second time. This time convincing the trial Court to allow the testimony of five women who alleged similar conduct by Cosby, but with significantly different details in each case. The new D.A. actually asked the Court to take testimony at trial from 19 other women, but the trial Court limited it to five women.
In its opinion, the Pennsylvania Supreme Court acknowledged all 19 women witnesses. And it didn’t offer a single syllable of criticism or doubt about the veracity of any of them. The Court said that the problem was the new D.A.’s contempt for the procedural requirements of the decision made by her predecessor.
Yes, by HER predecessor. The new D.A. was a woman. A woman who felt that a Black defendant’s Constitutional rights needed to be ignored and trampled on because protecting White womanhood was more important. Rita Vetri Ferman followed her predecessor’s career path, winning a judgeship in 2015. Since then, as a loyal Republican, her contempt for the 5th Amendment and other human rights has been part of Pennsylvania’s judicial system. Her party is now seeking to spend millions of taxpayer dollars on an Arizona style Fraudit of the 2020 election.
So although the Pennsylvania Supreme Court opinion stresses the importance of Due Process Fundamental Fairness and Constitutional rights, the woman who boosted her career by violating Bill Cosby’s rights, now wields the power of a judge to ensure that such rights are limited when other Black defendants are involved.
People who attack the Pennsylvania Supreme Court for its focus on long-established rights are emulating the post-Reconstruction era southerners who exalted the flower of white womanhood over the rights of accused Black men. We cannot ignore the fact that Bill Cosby was an enormously influential Black man who set a role model for TV viewers going back, long before The Cosby Show, to the 60s I Spy, in which he was the smarter Black sidekick to the White lead character (Robert Culp), and for which he won 3 Emmy Awards.
Credible witnesses support the belief that Bill Cosby’s personal conduct has been far, far different from the exemplar characters he has portrayed. The damage done to others in pursuit of his own desires is reminiscent of Elia Kazan, a great director, who destroyed other lives with his testimony to HUAC. But the misconduct in neither man’s personal life should erase the noble content of their professional output.
Voices who attack the Pennsylvania Supreme Court’s opinion as an attack on women, or discouraging women to speak out about sexual assaults, are wrong, shallow and threatening to the rule of law, in the same way that rightwing talk radio is wrong, shallow and threatening to the rule of law, with its emotional, fact denying noise.
As many people rightly lament the loss of Pacifica Radio’s founding goals of intelligent discussion of important issues, we can only hope that someone can find a way to restore such intelligent discussion, as an alternative to the “progressive” noise makers, doing their best to emulate the worst of rightwing talk radio. It bears noting that during the Anti-Vietnam War era, the pacifist oriented Pacifica found space to include the war-monger Casper Weinberger as a commentator.