Bill Cosby shows how the legal system works for the wealthy

Due process costs money

Bill Cosby.
(Image credit: Illustrated | Getty Images, iStock)

The Pennsylvania Supreme Court ordered Wednesday that Bill Cosby, who has served about two years of a 3-10 year prison sentence for sexual assault, be released on a technicality.

Cosby's story makes for an interesting contrast with another person who was recently released from prison: Yutico Briley. As Emily Bazelon writes in a fascinating piece for The New York Times Magazine, back in 2013 Briley was sentenced to 60 years in prison for an armed robbery that he did not commit. After eight years behind bars, he was finally set free.

Together, the two cases show one way the American legal system is rigged.

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Here's the background. When Cosby was originally accused of assault in 2005, then-Montgomery County prosecutor Bruce Castor (who would later go on to defend President Trump in impeachment proceedings) declined to prosecute. The reason, he said, was so he could coerce Cosby into testifying into a civil case, where he would not be able to invoke the Fifth Amendment. Castor supposedly also agreed that he would never prosecute Cosby, and that this decision would also be binding on all future prosecutors in the state.

The Pennsylvania Supreme Court bought this argument, despite the fact that the agreement was not written down or mentioned in contemporaneous press releases, and that Pennsylvania law requires that non-prosecution agreements be approved by the court. When "a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced," the judges wrote.

This seems a little far-fetched to me, though then again I am not a legal expert. But two things can be concluded. First, even if we grant that Cosby's rights were violated, a poor or working-class person would never get this kind of sweetheart non-prosecution agreement. Second, Cosby's vast wealth allowed him nearly limitless access to well-resourced lawyers who could search for some loophole or another to get him out of jail, which non-rich people also do not get.

Consider the Briley story. At about 2 a.m. on November 27, 2012, someone robbed a man called Benjamin Joseph at gunpoint in New Orleans. Later that evening, a passing police car noticed Briley and stopped him. Briley, then 19, was carrying a gun, in violation of his parole (stemming from a drug conviction two years previously). Despite the fact that Joseph previously told police the culprit had a slim build and was wearing a pullover, and Briley was stocky and wearing a zip-up hoodie, police brought Briley for a "show-up." This is where a suspect is presented to a witness alone for an identification (as opposed to the traditional lineup) — which tends to inherently bias towards a positive result. Joseph indeed said Briley was the robber.

But Briley insisted he hadn't done it. He said he had been at a motel at the time of the robbery, and that this could be proved with video surveillance. He asked James Williams, a lawyer who had represented him previously, if he could get the tape. Williams said he'd need a retainer of $2,500 and payment of past bills just to get started. (Cosby, by the way, recently paid $2.75 million in legal fees stemming from just one trial.)

Briley and his family scraped together as much money as he could, but it still took Williams three weeks to file the subpoena. By the time he had ditched Briley as a client because he stopped paying, it turned out that Williams had idiotically requested the wrong hours of tape — 12 to 3 p.m. instead of a.m. — and when a public defender tried to get the right ones, the motel had taped over them. For the trial, Briley's family tapped every resource they had to hire more private lawyers. Except those lawyers then failed to bring up that Joseph's testimony contradicted his own 911 call about what the robber was wearing, as well as the discrepancy about Briley's build. Briley was quickly convicted, and thanks to insanely punitive rules about prior convictions, got 60 years in the slammer.

If you're a regular working stiff in this country accused of a crime, it's a safe bet that you will get the absolute bare minimum of due process. And there's a good chance you will get railroaded directly into prison by prosecutors stacking up as many charges as they can, forcing you to take a plea bargain out of fear. In the unlikely event you go to trial, it will likely be a charade, clumsily going through the legal motions before you get put away.

It was only thanks to Briley striking up a friendship with Bazelon, and a Black Lives Matter-inspired political movement to turf out vindictive prosecutors and judges in New Orleans, that he managed to get released — having already served what would count as a murder sentence in any civilized country. There are unquestionably tens of thousands of Americans still in prison today with similar stories who are not so lucky.

But if you're super rich and accused of a crime, prosecutors will hesitate. They'll offer sweetheart bargains to avoid expensive and lengthy trials — which they would probably screw up because the standards of professionalism or even basic competence in the legal sector are plainly abysmal. If by some miracle the rich person is convicted, he or she will get endless chances to pick and pick and pick at the rules and procedures to find some argument to squirm out of punishment. Eventually they'll probably succeed.

Keeping Cosby locked up "would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain," write the Pennsylvania judges. Alas, that ship has sailed. Whether you face accountability for a crime in this country depends almost wholly on one thing: money.

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