“Bill Cosby Is Innocent…”

…says my friend Whoopi Goldberg. In defending Bill Cosby, she stated, “The bottom line is, that’s the law.” She added,”Innocent until proven guilty.” In illustrating the importance of due process, Whoopi highlighted the 2006 Duke lacrosse case, where three Duke lacrosse team members were falsely accused of rape.

In response, I say, “Whoopi, you are right.” Legally, every defendant is presumed to be innocent unless proven guilty in a court of law. That includes Bill Cosby. The question is whether every person who is “legally innocent” is actually/factually innocent. The answer is “no.” There are numerous reasons why someone who committed an offense may never be brought to criminal court and/or convicted. One reason is that the evidence is insufficient, in spite of the person’s guilt. As we have all learned from many high profile cases resulting in acquittals, the Criminal Justice System is less about truth and more about what can be proven. “Proof beyond and to the exclusion of every reasonable doubt” is a very high burden for prosecutors to reach. As a result, many cases aren’t brought by prosecutors due to proof problems and not because of a person’s innocence. Additionally, some cases aren’t brought in the criminal arena because of problems with the Statue of Limitations. That’s the only reason why Cosby hasn’t been yet stripped of his liberty, in spite of approximately 40 separate accusers and his admission in sworn testimony from his 2005 civil suit. Prosecutors believe he is guilty and most folks who are being intellectually honest also believe he isn’t Snow White innocent.

Regarding her opinion about Cosby, Whoopi has also stated, “So, don’t come after me like that, ’cause I’m sick of this bull.” She added: “Here’s the bottom line, for me: It’s my opinion. And the American courts agree with me, because still he has not been taken to jail or trial on anything. So, back off me!” To those remarks, I say, “Well Whoopi, you are right, in part.” People should back off if they are personally attacking you or threatening to do violence to you. What makes this country great is that everyone is entitled to their opinion. As a free society, we should encourage a free flow of ideas and agree to respectfully disagree with those whose opinions differ from ours. However, what I do disagree with is the portion of her remarks which seem to erroneously suggest that Cosby is actually innocent because he was never taken to jail or placed on trial. That hasn’t happened solely because of the Statute of Limitations.

So, are we wrong for saying or even thinking that Cosby is guilty absent a conviction or even an arrest? After all, as Whoopi points out, shouldn’t we keep our, “He’s guilty” remarks until after he has been brought into court and convicted. My answer may surprise you, especially since it’s coming from a veteran criminal defense attorney. Most defense lawyers would scorn you for declaring someone guilty before it’s proven in court. I don’t feel that way. I do believe that people should keep an open mind, keeping in their recent memories cases like the Duke lacrosse case and the countless innocent prisoners released after being exonerated. I also encourage people to realize that the media doesn’t always accurately report the evidence in a case and/or they don’t have the complete story. However, the “Court of Public Opinion” is always in session and folks are free to formulate their own opinions, in spite of whether or not a case ever makes it to criminal court. Legally guilty and factually guilty may be two separate things. In other words, just because a person has never been brought to court or, after they were yet they were not convicted, does not mean that they are factually innocent.

So, is Bill Cosby innocent? Yes and no. Whoopi is correct that he is legally innocent because he’s never been proven guilty in a court of law. However, to suggest that he’s factually innocent, in spite of his admission in the civil case and the fact that there are more than three dozen accusers, seems to be a bit off base.

UPDATE

On Tuesday July 14th, Whoopi changed her stance concerning Bill Cosby. She stated on “The View” that she can no longer say “innocent until proven guilty.” She further stated during a conversation with ABC News chief legal analyst Dan Abrams., “If this is to be tried in the court of public opinion, I got to say all of the information that’s out there kind of points to guilt.”