#MeToo claims first legal scalp

#Metoo got its first legal scalp. It’s racked up some significant social and moral victories over the past six or seven months, but the person who will be looked to as being the first documented victim of the new perspective on due process will be Bill Cosby.

Thursday afternoon, a jury in Montgomery County found the 80-year-old comedian to be guilty of sexually assaulting Andrea Constand, marking a significant victory for District Attorney Kevin Steele. Actually, the scalp I referred to in the first sentence is one he can attach to his belt, and it’s one that he desperately coveted during his campaign for D.A. back in 2015. You have to give him credit, it’s a big and bloody one.

But he didn’t do it alone and, frankly, he wasn’t able to do it by himself the first time around. Last year, the first jury to consider the matter wasn’t able to reach a verdict, and Judge Steven O’Neill announced a mistrial. Steele wanted that scalp, or I suppose he would say he wanted justice for the victims of an alleged serial rapist (tomato, toMAHto) and so he announced only minutes later that there would be a retrial.

And so there was. But during the relative lull between hearings, a tectonic shift took place on the social landscape, and Harvey Weinstein became the most hated man in Hollywood. Then others started being accused of sexual misconduct, both in the entertainment industry and politics, which gave the media an opportunity to consider that priests weren’t the only ones capable of abuse.

Clearly, the times had changed. Clearly, the pendulum had swung. Clearly, this wasn’t going to be your grandmother’s Cosby trial any more.

And as our ideas about victims and sexual assault changed radically, so did our requirements for due process. As we felt increased compassion and empathy — and a desire for retribution — for the alleged victims, the demands we made on prosecutors and their witnesses evolved.

Whereas before the word of the accuser was not enough to convict the accused, the sounds of her narrative became more convincing. Whereas before the fact that she might have waited decades before speaking out was problematic, that lapse of silent years became less damning. Whereas before our judges and juries required mountains of corroboration to build a circumstantial case, now the similar echoed stories of a few other women sealed the deal.

Cosby was accused by more than just a few women, and their stories were identical: He invited me to his room, he drugged me, he raped me. Women who were teenagers in the 1960s pointed their fingers at him. Women who are grandmothers now joined their voices to some who are only middle aged, and some women are even younger than that. There were no claims of abuse within the last 10 years.

But #Metoo, a movement more powerful than an atomic bomb, shattered the due process paradigms that existed since well before I earned my law degree in 1987. Now, scalps are easier to win, and this time you can do it legally and have a judge and jury affirm the trophy. And that has troubled me from the beginning of the #Metoo movement.

I have famously questioned the veracity of the Cosby accusers, well before #Metoo. I have written articles, and have become a bit of a legend in social media circles as that “rhymes with witch who defended a rapist.” I regret nothing, because I haven’t changed my mind about the holes that make Swiss cheese of the legal foundations for the prosecution.

For instance, unsealing a closed civil deposition where Cosby likely incriminated himself in violation of the 5th Amendment should never have been allowed by a federal judge. Allowing witnesses whose claims arose decades ago as proof of “prior bad acts” was more prejudicial than probative, and should never have been let in. Allowing Gloria Allred anywhere near a camera also was a constitutional violation of the highest legal (and aesthetic) order.

But more troubling to me than the guilty verdict is what I suspect triggered it: A lazy acceptance of minimal proof, a willingness to right the wrongs of the past on the back of the present, an upheaval in a system that has simply switched one sort of victim for another.

Bill Cosby has been found guilty. I respect the jury’s verdict, because I must respect the system. It is the only thing that separates us from anarchy.

But I will go to bed tonight feeling a chill for what is certainly coming, in courtrooms around the country.