Yesterday Bill Cosby was found guilty on three counts of aggravated indecent assault against Andrea Constand in 2004.

The MeToo movement is happy, flooding Twitter with tweets such as these:

Finally some justice for Bill Cosby’s victims. May they find a little #peace today. #GUILTY

— Elizabeth Banks (@ElizabethBanks) April 26, 2018

Do I think Cosby is guilty? Most likely.

Do I think the trial was fair, and that Bill Cosby got justice? I have grave doubts, and that’s what this post is about.

The first question is: why does it matter whether the trial was fair, if a guilty person is punished? Well, it’s the old idea that it’s wrong to “cut a great road through the law to get after the Devil.” The process of law is intended to make sure cases are decided on facts and the preservation of the presumption of innocence despite the fog of emotion and the witch-hunt mentality that can prevail in many cases. Those things are of the utmost importance. In our system of justice—not vengeance, but justice—it is considered more important to preserve these safeguards than to sentence every wrongdoer.

And that is why the Bill Cosby trial disturbs me. The jury in his first trial was hung, and that was almost certainly for two reasons. The first was that only one extra accuser was allowed to testify in that trial compared with five in the subsequent trial. The second is that the MeToo movement—which has gathered steam between the two trials—has created a frenzy of vengeful feeling and an assumption of guilt for anyone such as Cosby, who is a celebrity in show business with multiple accusers.

Those five accusers and the fact that they were allowed to testify matter a great deal. This article from March 2018 (written when the judge in the case ruled they could testify) describes the situation in the legal sense:

Ordinarily, prosecutors cannot introduce evidence or accusations of prior bad behavior because a jury is supposed to focus most substantially on the facts of the single case before it. But such evidence is sometimes permitted when it can be argued that the conduct is so similar it demonstrates a common scheme or plan, a kind of unique signature of the defendant.

Judge O’Neill said in his ruling that he had carefully weighed the probative value versus the risk of unfair prejudice in his decision. Nevertheless some experts said it created an opening for Mr. Cosby’s lawyers to take any conviction to appeal.

It certainly does. More:

The prosecution will now be able to use the extra testimony to fill in the gaps that emerged in the account put forward by Ms. Constand, such as the uncertainty in identifying precisely when the incident occurred. The defense had also confronted Ms. Constand about why she took a year to report it to the police and why she continued to have contact with Mr. Cosby after what she described as an assault.

“Once you have the fifth woman saying it happened to them as well, these gaps become more excusable,” Mr. McAndrews said.

This is exactly what our system of justice is meant to protect against. The facts of the case, and the credibility of the accuser, are meant to stand or fall on their own. There is a reason the other women aren’t the subjects of a bunch of other trials in which Cosby is the defendent: the statute of limitations had run out on their claims. There’s a reason for statutes of limitations, and the reason is that with the passage of so much time it becomes nearly impossible to get reliable evidence for a host of reasons, including but hardly limited to the murkiness of memory. And memory is almost the only evidence we can have for acts such as these, which depend on states of mind and hesaid/shesaid arguments.

And yet the women were allowed to testify in the second trial:

In the first trial, the jury heard Constand’s story and the story of one other accuser. This time, the judge allowed the prosecution to call five witnesses, all of whom said Cosby drugged and sexually assaulted them. Their accusations dated back to the 1980s.

Cosby is not on trial for the incidents they described ”” something the judge had to remind the jury ”” but the five women were supposed to serve as “prior bad acts” witnesses who could establish Cosby had a pattern of assaulting women…

Some women admitted to confusion about what happened to them decades ago, and that they spent years grappling with their encounters with Cosby. Yet all were adamant about their allegations: They were drugged, they were assaulted, and Cosby did it.

And all of them, prior to their testimony in this trial, had access to the stories from the other women about what Cosby did to them. This gave them ample opportunity to “refresh” their memories and nudge their memories so that the stories were very similar.

I’m not saying they’re lying; as I already said, I happen to think it more likely than not that Cosby is guilty. But this is not about that; this is about whether they should have been testifying, and whether their testimony established guilt beyond a reasonable doubt or whether it preyed on emotions and the power of MeToo, and whether they had ample opportunity to make their stories match.

If you’re interested in the law related to “prior bad acts,” you can read about it in great detail here (warning: it’s quite complex).

Another unusual thing about the Cosby trial is that the prosecution made use of something called the “doctrine of chances,” a legal principle that is considered very iffy and which is hardly ever used in US courts. Here’s a discussion of that subject from a few weeks ago (it appeared in the leftist publication Mother Jones, but it’s a pretty good discussion):

WO: The fact is, we still want the jury to make the decision on the basis of its interpretation of her credibility versus his. We don’t want them to convict him of assaulting Andrea Constand because they believe he raped 50 other people. This other evidence is offered to inform our understanding of his credibility.

Now, the fact that there are 50 accusers means that we’re probably not getting this wrong by letting some of the accusers testify. But if you let 50 testify, then the odds that the jury would actually then listen to this particular case are almost nil. The jury would go, “Oh, he did 50, who cares if he did this one or not.” The fact there are 50 accusers makes us comfortable, I think, in admitting some of them.

MJ: That’s different, say, than the Larry Nassar trial, where more than a hundred victims spoke up in court””because that was during the sentencing. But this is all about
informing the jury’s decision?

WO: Right. Now, here’s the real wrinkle to this: Last time there was one. This time there are five. I don’t understand””what new has happened with the case since then? The answer is nothing.

What new has happened with society since then? The answer is quite a lot.

It seems to me with the whole #MeToo movement, society seems more willing to believe an accuser, even an accuser of a very important man. It seems to me that there’s less of a need in this case to hear from other accusers than there was at the last trial. The Harvey Weinstein tide had not turned at that point, and there still seemed to be some reluctance among people to believe women who accuse powerful men.

MJ: Last time, prosecutors argued they should be allowed to include other accusers because it showed that Cosby had a “common plan or scheme.” This time, they argued the doctrine of chances. What’s the difference?

WO: In essence, it’s one of numbers. If every time he goes to rape a woman he offers her an aspirin, and he does that two or three times, well, then it looks like a common plan or scheme. If he does it 100 times, then we can really say, “What are the damn odds he wasn’t doing it this time?” The doctrine of chances just considers the number of instances a little more than “common plan or scheme” does.

WO: It shouldn’t really matter. This was Cliff Huxtable. This was the character from Captain Kangaroo, beloved star of children’s shows and such. The Pudding Pops man. This is a guy that the jury would naturally tend to want to believe. All of that was true before.

So the judge balanced it and said, “Look, they’re entitled to hear some information, but if they hear more than this, it might prejudice them so they’re no longer really listening to this case.” That same fundamental balance is going on no matter whether you use doctrine of chances, or if you use “common plan or scheme” as they used last time.

MJ: Could it be the judge’s mind changing as a result of #MeToo, and him thinking, “Oh yeah, more women’s voices should be heard in court”?

WO: You’d hope not, because the role of the judge is not to provide a venue””it’s to provide a fair trial. If that’s the calculation that’s being made, then the judge himself would be putting the thumb on the scale differently as a result of the movement. If that’s what’s happening””and I’m not saying that it is””that would be problematic.

MJ: If I’m the Cosby prosecutor, and I invoke the doctrine of chances, how thoroughly do I have to prove that the previous incidents actually happened?

WO: You have to prove that a jury could have found that these things were true. You don’t have to prove it beyond a reasonable doubt, or even to a preponderance of the evidence, [but] it can’t be 50 harebrained stories.

MJ: And if I’m the defense attorney, how do I defend against all the extra accusers?

WO: If you can show that the stories aren’t credible, if they look like, “Wait a second, these things all are a little too similar,” or there’s some real credibility problems with each one of these witnesses, then you’ve got the same kind of arguments you always have. “You shouldn’t admit these, Judge, because they don’t seem to bear the indicia of reliability.”

Indeed. In my opinion,the rest of those witnesses should only have been allowed during the penalty phase, after sentencing. What we have here instead is a pattern of accusations from people whose cases could not be taken to trial because the incidents are quite ancient, people who for the most part did not report them till recently, people who had ample time and opportunity to compare notes, and people who might have been motivated by the fame and deep pockets of the accused.

There’s this, from the same article:

Also, one of the things you ought to also know is the doctrine of chances is not universally accepted, by a long stretch, in American courtrooms.

MJ: Why not?

WO: It’s not thoroughly accepted because it essentially says that we allow character evidence when it becomes sufficiently good, when it becomes sufficiently predictive. That really kind of undermines our basic notion that we don’t allow character evidence.

Look at federal rule of evidence 404(b). 404(b)(1) says character evidence is not admissible to prove propensity or conformity with the character. 404(b)(2), however, says “”¦unless that evidence goes to show intent, motive, absence of mistake, etc., etc., modus operandi, common scheme or plan.” Well, those things tend to swallow up the rule itself.

The doctrine of chances says, “We’re letting in character evidence, let’s just be honest about it. But since we’re doing that, let’s only do it when the odds are really good that if he did this past stuff, he did this current stuff.”

So whether Cosby is in fact (not just legally, but in fact) guilty or whether he is innocent, I am against the way this trial was conducted and consider it a dangerous development.