Bill Cosby's Freedom is a Sign of Hope

It is past time that we acknowledge the vast power differential that exists between the overzealous prosecutors and the people of this nation.

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When I first heard about Bill Cosby's overturned conviction and return to freedom I recall that the general sentiment around me was not a positive one. People repeated the mainstream media headlines that he had got off on a “technicality,” or that his release signaled “a major defeat for the American criminal justice system”

Fortunately, since one of his lawyers, Brian Perry, was interviewed on Crime & Justice Radio, I knew that there was much more to Cosby's release than just technicalities and a corrupt system that favors wealth, fame, and privilege over justice. And the more I dug into the facts surrounding his conviction the more appalled I became.

Bill Cosby, according to his own depositions in a civil case filed by his victim, Andrea Constand, sexually assaulted her at his residence in January 2004. I neither condone his behaviour or his actions, as both were abhorrent and criminal. But despite that, Cosby’s subsequent conviction was just as abhorrent and just as criminal.

Perhaps even more so because it was achieved through an overzealous and ambitious District Attorney who made the decision that Cosby's constitutional rights should be ignored, either for personal ambition or to punish wrongdoing beyond the limitations of the Constitution.

According to the Bureau of Justice statistics more than half of all wrongful convictions are caused by the same or similar governmental misconduct put on display for us by former D.A . Ferman of the Commonwealth of Pennsylvania.

Either we are a democratic republic of free people guided by human decency, the rule of law, the Constitution and the Bill of Rights, or we are not. We can't have it both ways.

The Constitution isn't just an old piece of parchment kept under guard at the National Archives for tourists to visit. It is a pact, a contract, it's the very thing that defines us as a nation.

And if it's a nuisance to police and prosecutors because it makes it difficult to prosecute and punish criminality, then that should be something that is celebrated not lamented.

Because it should be extremely difficult to erase a life and subjugate it to the slow, tedious torture of incarceration. The Fifth Amendment to the Constitution guarantees your right to never have to incriminate yourself.

It's not a suggestion it's a fundamental right, a promise between a government and its people that goes right along side your right to remain silent. A constitutional guarantee that, in Cosby's case, was flat out ignored.

Here's what happened. In January 2005 a woman by the name of Andrea Constand contacted police stating that Bill Cosby had sexually assaulted her in his residence in Cheltenham, Pennsylvania, the previous year. Bruce Castor was the elected District Attorney with jurisdiction over the case.

He investigated Constand’s allegations and determined that “there was insufficient credible and admissible evidence upon which any charge against Cosby… could be proven beyond a reasonable doubt.”

Because of which the then-D.A. Castor recommended to Constand that her best option to obtain some form of justice was in a civil lawsuit for monetary damages where the burden of proof would obviously be less.

But again, the legal challenge or difficulty was still going to be that Cosby would undoubtably invoke his Fifth Amendment privilege against self-incrimination. So Castor made the decision in his official capacity as District Attorney, publicly and in writing, to eliminate Cosby's ability to invoke his Fifth Amendment privilege by taking prosecution for the January 2004 incident off the table.

Because once the state says that it will not pursue prosecution the Fifth Amendment privilege disappears. And if Cosby would still have refused to give testimony in the civil proceedings he could very well have been held in contempt of court.

The result was as Castor had foreseen in that Cosby gave depositions under oath, making several inculpatory statements that pointed to his guilt. Which led to him ultimately settling a lawsuit for $3.38 million in favor of Constand.

Which was precisely the kind of justice that Castor had hoped to achieve for the victim since criminal prosecution didn't appear to be a viable option. Where everything went wrong, however, was a decade later when the then-District Attorney Ferman made the decision to renege on the state’s word.

Bruce Castor had signed a promise and a press release in his official capacity as D.A. on February 17, 2005, publicly announcing his decision to not prosecute Cosby. That information was then passed on to Cosby’s civil counsel, John Schmitt, as it was extremely relevant as to whether or not Cosby would be able to exercise his Fifth Amendment privilege.

Cosby, then believing that he was immune from prosecution, incriminated himself under oath. So imagine his surprise to learn, a decade later, that the evidence was now going to be used against him to criminally convict him for the 2004 incident.

Basically the state and the court became accomplices – as District Attorneys and courts often do – in prosecuting Cosby on the basis that because Cosby was in fact guilty of sexual assault ing Constand, per his own admission, that the Constitution and her amendments were too overburdensome and need not be upheld.

Nonsense that Cosby obviously appealed to the Superior Court of Pennsylvania, a court that was likewise not interested in the Constitution.

The argument being substantiated was that there was no enforceable contract between the Commonwealth of Pennsylvania and Cosby, despite the fact that Castor himself testified on the matter and flat out said that it was his intent to remove “for all time” the possibility of prosecution for the 2004 incident.

Fortunately the state Supreme Court of Pennsylvania decided that the Constitution was still valid, even for Cosby, and that the state was bound by Castor’s non-prosecutorial decision. The victory here is not that a guilty man walks free, it's that the rule of law prevails.

The victory is that here is proof that the Constitution still means somethings; that the pact between the prosecutorial arm of the government and its people is still valid. Because if we can't trust our government to keep its word then we can't call ourselves free. Since our freedom is entirely dependent on the validity of the very document that we hold up to the world as proof of our freedom.

Joe Biden recently said, “we've got to prove democracy works.” And we can't do that when the government tells the Constitution, figuratively speaking, to wait in the hall while it prosecutes one of us. That's what happened to Bill Cosby. And that’s what happened to me and thousands of others who lack the means or abilities to make their cases known.

It is past time that we acknowledge the vast power differential that exists between the overzealous prosecutors and the people of this nation. The majority of us are not equipped to defend ourselves from prosecutorial ambition and corruption, whether that be directly through prosecutors or law-enforcement.

Most of us don't have Cosby’s means or legal team, but that doesn't mean that we don't deserve the opportunity to be heard when we're screaming at the top of our lungs that our constitutional rights are being ignored but we find ourselves silenced by the prison walls that entomb us.

So let me be one of the first to say, as someone who knows a thing or two about being convicted without the protections of the Constitution, that Bill Cosby's freedom is a sign of hope.

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