Montgomery County District Attorney Kevin R. Steele made it sound as if the decision to retry Bill Cosby is a no-brainer.
“We will take a hard look at everything involved, and then we will retry it,” he said immediately after Judge Steven T. O’Neill declared a mistrial.
Perhaps a better decision would have been to take a hard look at everything involved and then decide whether to retry it.
After all, Steele made that decision without knowing the split among deadlocked jurors. If the number of mistrials requested by the defense during deliberations is any indication, he’s right in thinking the prosecution had the advantage and perhaps there were only a couple of holdouts. Post-trial news accounts seem to confirm that. Still, why the rush when the jury hung? Why not wait and see what kind of revelations might be forthcoming?
There is also the concern that prosecution looks political. Steele, of course, ran on a campaign pledge of prosecuting Cosby. His opponent, former District Attorney Bruce Castor, said there was not enough evidence to do so. While Steele said Castor should have arrested Cosby, it was Castor’s decision not to prosecute that gave Cosby the comfort to testify so openly in his civil case. If Cosby believed he faced the risk of prosecution, he would certainly have invoked his Fifth Amendment right in his civil deposition and Andrea Constand would not have been paid — a point not lost on Castor.
“Knowing in 2005 there was insufficient reliable and admissible evidence upon which a conviction could be sustained beyond a reasonable doubt, I decided not to prosecute Mr. Cosby,” he said in a statement after the mistrial. “In declining to prosecute Mr. Cosby, my goal was to make it possible for Ms. Constand to prevail in her civil lawsuit against Mr. Cosby, which I understand she did.”
Castor noted that Steele had the benefit of Cosby’s “own words” from that civil suit, “which dramatically increased the chance of a conviction,” plus the testimony of an additional alleged victim, Kelly Johnson.
“Despite all this, the prosecution still failed to obtain a conviction today,” his statement said, while careful to add that the “failure to convict Mr. Cosby is not the fault of Ms. Constand.”
Then there are the cost considerations. As to the former, Judge O’Neill noted: “This is probably the largest undertaking in this county in terms of what it put on our criminal justice system.”
In a post-trial news conference, Steele said: “You can’t put a price tag on justice, and if you do, you’re saying that, because somebody’s wealthy or famous, that they don’t deserve the same kind of justice that everybody else does.”
But actually, it’s only a defendant with Cosby’s wealth who could sustain two complex trials with high-priced legal talent. Anyone else might be tempted to take a plea agreement whether or not warranted by the facts.
Here’s something else worth considering: The underlying events are already 13 years old, and the evidence from the 2004 encounter will not get any fresher. Without forensics, the retrial would still be “he said vs. she said.” And while there might again be evidence of prior bad acts, chances are it would be of little consequence. The jurors asked 12 questions during deliberations, but none about that testimony, and while they wanted to again hear the words of six witnesses, Kelly Johnson was not one of them.
Of course, the biggest consideration for Steele might be whether a similar outcome, or even a remotely possible defense verdict, helps or hurts the victims of sexual assault. That’s an issue I put to Victoria Valentino, one of the many women who have stepped forward in the last few years with claims of sexual assault against Cosby. Valentino asserts that Cosby raped her when she was 26 and grieving the loss of her 6-year-old son who had drowned in a swimming pool. She attended every day of Cosby’s trial and told me she sees value in a retrial.
“Well you know, the conversation is open, it’s on the table, we’re talking about it, people are coming out of the woodwork because we spoke out and suddenly there are so many people coming to us through private messaging on Facebook, through finding us on email, telling us about their own personal stories of rape, incest,” she said.
But might the message sent to women in the event of another inconclusive outcome be that you can’t win if you do come forward? I asked.
“This speaks to what is the worth of a woman in today’s society, in the 21st century,” Valentino replied. “We’re dealing with rape culture, we’re dealing with 17th-century rape and plunder mentality. … I mean it boils down to what are you worth? Oh, yeah, two goats, 10 chickens, and a pig, you know, dowry, back to being property. It’s very discouraging, but on the other hand we have a strong body of evidence, we have spoken out. Other people are speaking out, other people are finding their voice, other women are standing up and confronting their rapists and quite often the rapist is somebody they knew and trusted and they were afraid to confront them because they didn’t want to hurt their mom because it was their dad. They didn’t want to hurt their grandma because it was their grandpa. They didn’t want to create a big scene because it was a teacher in their school or the minister of their church.
“It’s often the reason why women stay silent. They’re afraid. They feel not believed, they feel ashamed, they feel dirty, they feel humiliated, and they’re just bottom-line afraid to speak out for not being believed. And then, of course, historically, the legal system has revictimized them, the victim. So hopefully we will have a shift. All I can say is that the conversation is open, on the table, we’re talking about it, and it’s not going to go away. The work goes on.”
If the retrial ends in a guilty verdict, no one will second-guess Steele’s quick announcement. That’s about the only certainty in this case.
Michael Smerconish can be heard 9 a.m. to noon on SiriusXM’s POTUS Channel 124. He hosts Smerconish at 9 a.m. Saturdays on CNN.