July 08, 2021 at 12:28AMJanell Ross
When the Pennsylvania Supreme Court last Wednesday vacated Bill Cosby’s 2018 conviction for sexual assault, freeing him immediately from his three to 10 year prison sentence, the disgraced comedian was quick to offer himself as a grand exemplar of the problem of wrongful convictions in the United States.
“This is for all the people who have been imprisoned wrongfully regardless of race, color or creed,” Cosby said Thursday on WDAS-FM, a Philadelphia R&B radio station.
By the end of 2015, more than 60 women had publicly accused Cosby of rape or sexual assault over a period of five decades. The case of former Temple University coach Andrea Constand, in which Cosby was convicted, was the only one for which legal time limits for charges had not expired. But, despite what he said during his radio appearance, which was just one of many instances in which Cosby has declared himself innocent of any crime, the court’s decision to overturn his conviction included no findings about his guilt or innocence. Rather, the court ruled that, because Cosby gave damning testimony in a civil case only after a prosecutor promised not to pursue a criminal case against him, Cosby’s Fifth Amendment right to avoid self-incrimination had been violated by the use of that testimony as evidence in a subsequent criminal case. And as the Cosby news jolted the national conversation about the criminal justice system, the reaction among those who track and study wrongful convictions ranged from celebration to disgust.
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Each year, about 1 million people are convicted of felony crimes in the United States and several million more of misdemeanors. Of those convictions, about two percent are eventually overturned, says Samuel Gross, a professor emeritus at the University of Michigan Law School, where he also co-founded The National Exoneration Registry, a database detailing cases in which findings of actual innocence or evidence of innocence has played a role in a convicted person’s release from prison. The registry includes the details of about 2,800 cases since 1989 where someone has been exonerated, under that definition; about 61% of those people are Black or Latino. In the type of cases the registry has tracked, false testimony given by witnesses, followed by official misconduct by prosecutors or police, has been the most common cause of a wrongful conviction. Often there is more than one cause, with official misconduct cropping up in more than half of all exonerations. And many more innocent people, Gross warns, likely sit in the nation’s prisons, unable to get so much as a hearing that could lead to exoneration.
Gross does not anticipate that Cosby’s case will ever be listed in the database. No matter what Cosby has said—on the driveway of one of his homes, in interviews, in recorded soliloquies—no claims of innocence were formally made or ever considered by appeals courts after Cosby’s 2018 conviction. But in general, the bulk of the relatively tiny number of cases in which a conviction is overturned are, like Cosby’s, tossed because of procedural and constitutional issues, Gross says.
To Gross, the idea that Cosby got out on a “technicality,” as many tellings would have it, is a grating reduction of a complicated and important process we rely on to produce justice.
But the Cosby case probably won’t clarify that process. The rare televised case with a celebrity defendant and an expensive, large defense team, he says, should not cloud the public’s understanding of the system, how it works and what is typical. “The O.J. trial and the Cosby case,” Gross says, “these are unique events and are as similar to [other trials as] a high school football game and the Super Bowl.”
To Jennifer Bonjean, a lawyer who was part of the latest iteration of Cosby’s frequently changing post-conviction legal team, that distinction is unhelpful. “Instead of people being upset about [Cosby’s release], they should be celebrating the fact that we have a Constitution that protects all of us,” she tells TIME.
Bonjean—who says she is not insensitive to the feelings of women troubled by last week’s events—began her career as a victim advocate at a rape crisis center before going to law school and, she says, realizing that the biggest underdogs in the system were defendants who were young, poor men of color. After graduating, she worked as a public defender doing appeals work for low-income defendants unable to afford a private lawyer. After she moved into private practice in 2007, she continued working with defendants, but the type of client she was known for working with changed. She’s represented and consulted on cases involving Cosby, the convicted rapist and Hollywood producer Harvey Weinstein and, reportedly, alleged NXIVM cult leader Keith Raniere. (Bonjean, who declined to confirm her involvement in the NXIVM case when asked by TIME, learned of Cosby’s impending freedom later than others last week because it was announced when she was inside a Manhattan federal courtroom, where phones are barred, watching the sentencing of the actor Allison Mack for her involvement with the NXIVM group.)
While she readily acknowledges Cosby is not among the poor clients she once represented, Bonjean considers the court’s decision in his case good news for those in need of a public defender today.
“We don’t want to live in a world where prosecutors go back on their word because of politics,” Bonjean says, referring to the way the #MeToo movement pushed public sentiment to what Bonjean characterizes as a dangerously influential peak during Cosby’s 2018 trial. “Do we want to live in a world where the government can dupe you into waiving your constitutional rights?”
Linda Hirshman, a longtime lawyer, law professor and author of the book Reckoning: The Epic Battle Against Sexual Abuse and Harassment, doesn’t buy the connection. Any claims, she says, that Cosby’s freedom advances the cause of equal treatment for Black Americans are without merit. Many of the women who have accused Cosby of sexually assaulting them were women of color, some of them Black.
“This told you…that in a racist society like ours,” Hirshman says, “that if you have enough power and money you get to be treated like a white man, for a brief period of time.”
Hirshman, who practiced labor law for nearly two decades before teaching it, was by the morning after Cosby’s release upset enough to curse as she described the contents of Cosby’s appeal, and the rarity of a court’s decision to vacate a conviction and send a prisoner straight home.
“They don’t think that powerful men should have to pay for abusing women,” Hirshman says about the court’s majority decision and her ire last week. “You have to confront that possibility because that’s the outcome here.”
Hirshman also takes issue with the majority’s reasoning. In the Cosby opinion, Pennsylvania Justice David Wecht compared a prosecutor’s assurance that he or she will not prosecute a person to a plea agreement. But, Pennsylvania law governing plea deals explicitly requires several steps, such as the opportunity for a judge to approve any deal and, often, a formal written agreement, Hirshman points out. Cosby had no such document. Rather, a majority of the Pennsylvania Supreme Court accepted the Cosby legal team’s arguments that the then prosecutor’s statements at a 2005 press conference and in a subsequent press release left Cosby with the impression that he would not face criminal charges, even though the initial district attorney’s press release warned that a change of mind remained possible—which is what a subsequent prosecutor did, Hirshman says.
For others in the criminal justice world, however, the takeaway is more complicated. One long weekend may not be enough time to resolve the internal conflict unleashed by last week’s events.
Mark Godsey, a University of Cincinnati law professor, former prosecutor and director of the Ohio Innocence Project, who describes himself as a supporter of the #MeToo movement, is sympathetic to the pain unleashed when Cosby was released from prison. Cosby’s conviction had been regarded as a watershed moment, the beginning of long overdue justice for women whose stories had been ignored for decades, Godsey says. On the other hand, he’s inclined to agree with Bonjean that Cosby’s release is a victory for fairness, for a system in which prosecutors must follow the rules and obtain convictions justly. And ensuring such a system is especially important for the sake of the people whom Cosby made a second career out of scolding, and who—despite Cosby’s attempts to connect his case to their experiences—experts say occupy a different world when it comes to criminal justice.
“We have got to keep the #MeToo movement going [and] hold people like Cosby accountable, but if we’re going to do that we have to make the system more fair,” says Godsey, the author of Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions. “Criminal justice reform is an upward battle. [But] when it is unfair it screws over people of color, people who are poor, people who are the most vulnerable.”
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