Undue Process: Thoughts on Bill Cosby’s Overturned Conviction

by Daniel A. Rosen |

Bill Cosby surely celebrated his new-found independence this 4th of July at his Philadelphia mansion – the same place where he raped dozens of women over the years. Unfortunately, 2.3 million other Americans – about half of them black, and the vast majority of them poor – marked the holiday sitting in jail and prison cells. The best they could hope for was a phone call home to hear about the barbecues and fireworks, and maybe a picture in the mail later.

“This is for all the people who have been imprisoned wrongfully,” Cosby said rather improbably of his release. This supposed champion of the downtrodden claims that his overturned conviction shows how well the justice system works – but it’s really the opposite. Cosby walking free is actually about the privilege that wealth buys and the purchasing of justice, not due process.

The fact is that Bill Cosby had similar grounds for appeal as many other prison inmates. Prosecutors routinely violate the due process rights of the accused – because they can, really. We’ve given prosecutors so much unchecked power in the criminal justice process that they usually just seek to inflict maximum penalties – if there’s an appeal later, so be it. While I’m glad to see prosecutors held to account for abusing their authority and discretion in this case, let’s not pretend that overturning this conviction will have a chilling effect on their treatment of less privileged defendants.

Sadly, most inmates can’t afford to pay for endless appeals, no matter how seriously their Constitutional rights were violated. More to the point, most inmates wouldn’t have ever been offered the kind of immunity deal that DA Bruce Castor extended to Cosby in 2005 in the first place. They don’t have the kind of high-powered, high-dollar legal team that negotiates deals like that.

Castor claims that he was simply trying to help Andrea Constand’s chances of success in her civil suit, by offering Cosby immunity from criminal prosecution for his deposition testimony. But for most defendants, a DA would have simply filed the criminal charges – even stacked multiple charges – and secured an indictment from a grand jury, expecting to induce a plea deal. Few defendants get the courtesy and deference that Cosby’s expensive defense team bought him.

It’s not that different from Jeffrey Epstein’s all-star defense team, which secured him a non-prosecution deal on federal charges initially. Epstein instead pled guilty to some low-level state charges in that deal, thanks to the pricey lawyers who reportedly intimidated prosecutors using Israeli ex-military investigators. Epstein served a matter of months in jail, on work release no less, despite a 60-page federal indictment detailing crimes that would have normally meant decades behind bars for most other defendants.

The sad fact is that wealth buys justice in this country – and in that sense Cosby is right that the system worked. It works well for the very rich and powerful, and the well-connected. But I’m surrounded every day by regular people serving over-long sentences for crimes that often don’t merit it. No one in my cellblock had a six- or seven-figure legal defense team. And the ones who raped an adult are serving decades behind bars, not a few years. Likewise for those who sexually assaulted children, as Epstein repeatedly did.

Though prosecutors like to say that every case is different, my own sentence on sex offense charges is also instructive. I was sentenced to 20 years – for sexting, sending an undercover officer posing as a teen some graphic messages. Since 15 years were generously suspended, I’ll serve 5 years in prison – just for typing. If I had gone to meet an actual teen, I’d likely serve 10; if I’d had sex with her, it’d probably be double that. This is meant as a comparison, not a complaint.

While 5 years in prison for sexting could be considered excessive for a first-time offender, many I’ve met behind bars have much worse stories. The common denominator is often an inadequate defense and/or an overzealous prosecution, usually relying on an overworked public defender. Often there are due process fouls involved, and legitimate bases for appeals – if the inmate had any means to file that appeal. (It’s not that easy to file on your own as a pro se defendant, despite what popular culture and prison movies would have you believe.) Evidence or confessions are improperly obtained or introduced, self-incrimination goes unchallenged, avenues for appeal aren’t preserved at trial, relevant witnesses aren’t called. It’s hard to prove a negative, especially when you’re sitting in prison without thousand-dollar-an-hour lawyers.

Many of my fellow inmates in Virginia’s resident sex offender program are happy to see Cosby’s conviction vacated – but that’s because they’re happy to see any sex offender “beat the system” and get out of prison. Prisoners always root for early releases, exonerations, vacated convictions, and grants of parole. At 83 years old, the truth is that Cosby has likely aged out of committing new crimes anyway. So while his conviction being overturned is a slap in the face to victims of sexual assault everywhere, at least he poses little risk of committing similar offenses in the future. I hope we can say the same about the next wealthy defendant who buys his way out of a serious criminal conviction.