When “Hearsay” Became the “Law of the Land”

Oprah Winfrey 635519860555079608-AP-IB0-OPRAH-WINFREY-24-LLINE

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Hillary Clinton and Bill Cosby

This article is in reference to what went on in Bill Cosby’s trial on July 7th, 2016. DA Steele argued and Judge O’Neill agreed that it was okay to use hearsay at a preliminary hearing against Dr. Cosby because it was “the law of the land.” This was an assault (sexual assault?) on the Sixth Amendment right of all Americans to confront their accusers at trial. This has been a right since 1791, at least until now.

Bill Cosby Returns to Court Seeking Dismissal of Sex Assault Charges

Bill Cosby Loses Bid to Get Criminal Case Dismissed

This is from the first “Daily Times News”article above: “While the state Supreme Court is currently reviewing the Superior Court’s decision in Ricker, Steele said “it is still binding precedent” and argued unless the rule is overturned, “this is the law of the land.”

Is the allowing of “Hearsay” testimony at preliminary hearings instead of readily available witnesses, really the “law of the land?” Have Sixth amendment  rights to cross examine witnesses really been eliminated from preliminary trial hearings?

This is what Steven F. Fairlie, the chair of the Montgomery County Criminal Defense Committee writes about the ruling Steele and Judge O’Neill cited. PA Superior Court: Hearsay Enough for Prima Facie Case?

Hearsay is an out-of-court statement used to prove the matter asserted. Generally, hearsay is excluded from legal proceedings because it is deemed unreliable, subject only to explicit and carefully defined exceptions (i.e. a “dying declaration” is admissible to prove the identity of the assailant and a “present sense impression” is admissible because statements made simultaneously as the information conveyed is perceived by the declarant is more likely to be accurate).   Hearsay not otherwise considered reliable is excluded because a fact-finder cannot assess the credibility of the declarant through her own perception. In other words, the prohibition of hearsay prevents “he said; she said” situations from being given too much undue credence.

However, hearsay is admissible at preliminary hearings in Pennsylvania. The preliminary hearing is an initial stage of the criminal adversarial process whereby the prosecution must prove that it has the specific evidence necessary, if later proved true beyond a reasonable doubt at trial before a jury, for the defendant to be convicted of the crime charged.   Preliminary hearings are held in front of a magisterial district judge, an elected position that does not require a law degree.

The admissibility or inadmissibility of hearsay in a criminal case is an especially important decision for the reliability of certain statements to be considered. As anyone who has ever sat for jury duty will note, one of the first questions a defense attorney or a prosecutor may ask is whether or not the potential juror will be especially swayed (for better or worse) by the testimony of a police officer. Preliminary hearings are generally considered to be prosecution-friendly, where the Commonwealth has a low burden. Nevertheless, the hearing serves an important role in holding the prosecution accountable.

This reality is what makes the intermediate appellate court’s decision in Ricker all the more alarming, and, perhaps, suspect. As the decision in Ricker stands, a prosecutor can in essence “phone it in” by having some different officer read the notes of the investigating officer, or worse yet, an officer provide his version of what the complaining witness said. There are absolutely no safeguards to such a system.

Certainly, we should be “alarmed” at a system where “there are absolutely no safeguards.

This is from the 2010 University of Illinois Law Review article entitled “THE CONFRONTATION CLAUSE AND PRETRIAL HEARINGS: A DUE PROCESS SOLUTION” by Christine Holst (pg 1614). She is talking about a 1987 Supreme Court Decision in “Pennsylvania V. Ritchie,” the last Supreme Court Decision in a case such as this.

“Predictably, in navigating the muddled Supreme Court precedent laid out above, courts came to different conclusions about the applicability of the Confrontation Clause prior to trial. The analysis of these courts roughly falls into two categories: those that applied the Confrontation Clause to a pretrial hearing because it was a “critical stage” of the criminal prosecution process, and those that held the Confrontation Clause is only a trial right and does not apply to pretrial hearings.”

“Pennsylvania vs. Ritchie” seems to be the important Supreme Court Decision here: Hoist notes this about it:

“Some would say that Ritchie settled the issue: the Confrontation Clause applies only to trial. Once again, however, this seems to be reading the Court’s opinion too broadly. The first flaw in this reading of the Court’s opinion is that the key passage about the Confrontation Clause (Part III-A of the opinion) was signed by only four justices, making this section a plurality opinion and not part of the majority opinion.65 Justice Harry Blackmun, who joined the Court on the rest of the opinion, wrote a concurring opinion where he stated that he refused to join Part III-A because he disagreed with the plurality’s conclusion “that the Confrontation Clause protects only a defendant’s trial rights and has no relevance to pretrial discovery.”66 Instead, Justice Blackmun argued that “there might well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible effective cross examination of a crucial prosecution witness.” Because Justice Blackmun disagreed with this portion of the Court’s opinion, the conclusion that the right to confrontation is a trial right and only a trial right is not one endorsed by the Court.”

The last sentence is important here — “Because Justice Blackmun disagreed with this portion of the Court’s opinion, the conclusion that the right to confrontation is a trial right and only a trial right is not one endorsed.”

DA Steele is arguing that the right to confront a witness is a trial right and only a trial right and not applicable at a preliminary trial hearing as this one was. However Supreme Court Justice Blackmun and the majority of the Supreme Court said in 1987 it was a right in a pretrial hearing. He was therefore incorrect when he said that Commonwealth vs. Ricker was “the Law of the Land” The law of the land was expressed in Blackmun’s statement that “there might well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible effective cross examination of a crucial prosecution witness.”

Certainly, DA Steele, introducing a hearsay statement by accuser Andrea Constand, instead of introducing her was a violation of Dr. Cosby’s Sixth Amendment right to confront his accusers. Sadly, Judge McHugh and Judge O’Neil ignored the law of the land and went along with Steele’s false and mistaken interpretation of the law of the land. If Andrea Constand had taken the stand and given testimony and the defense given a chance to cross-examine her, she may have repudiated the hearsay evidence Steele presented.

DA Steele claimed that she would have been attacked under cross-examination. He says: “Defendant wants to cross-examine the victim that he is charged with sexually assaulting in 2004 and attack her credibility.” Steele makes a false and malicious statement regarding Dr. Cosby here. Perhaps, Constand now sees differently than she did nearly 12 years ago. Perhaps, she now remembers events that she had forgotten at the time. Perhaps, she was under the influence of drugs or other people and she now knows the things she said aren’t true any more. If this was the case, and she admitted her mistake, the defense would not have attacked her credibility at all. By not putting her on the stand, Steele denied her an opportunity to correct her old testimony, either to add or subtract things.

In the second article, Cosby’s lawyers noted that hearsay cannot be a substitute for a live witness:

“We’re talking about an allegation of assault that happened over 11 years ago,” said one of Cosby’s defense lawyers, Christopher Tayback, arguing to the court that the statement read during the preliminary hearing was taken so long ago that the officer who recorded it has no recollection of it. It should not stand in for the witness herself, Tayback argued.

“You know what a witness can do?” he asked the court. “A witness can recant.” He reiterated the point, saying that a witness can do and say all kinds of things that a piece of paper can’t.

Part 2 – The Re-traumatization Excuse

According to the second article above, DA Steele also said, “It’s our position that we’re not going to re-traumatize victims,”

It is amazing that he can bring up the idea that Andrea Constand could be re-traumatized talking about this event:

  1. Andrea Constand did worry about being re-traumatized when she again met with Cosby at four different times after the alleged incident and never talked with him about it.
  2. Ms. Constand did not seem re-traumatized when she gave an expensive sweater to Dr. Cosby as a gift after the incident.
  3. She did not seem re-traumatized when she asked him for free tickets to a concert Cosby gave in Toronto and took her parents to see him eight months after the alleged drugging and assault.
  4. She did not seem re-traumatized when her mother repeatedly called Cosby over a five month period after the concert in order to establish a friendship with him.
  5. In 2005, Ex-professional basketball player 31 year old Andrea Constand was not re-traumatized when she told her parents about the event.
  6. Andrea Constand was not re-traumatized when she told a set of lawyers about the event.Ms. Constand was not re-traumatized when she told a second set of lawyers, Troiani and Kivitz, about the event.
  7. Ms. Constand was not re-traumatized when she told the Toronto Police about the event.
  8. Ms. Constand was not re-traumatized when her parents went to the Toronto Star and did an interview revealing her name just one week after she reported to the Police. Apparently her parents did not worry about her being re-traumatized by this.
  9. Ms. Constand was not re-traumatized when she told detectives from the Montgomery Country DA’s office about the event.
  10. Ms. Constand was not re-traumatized when she talked with detectives a second time from the Montgomery County’s DA’s office.
  11. 8. Ms. Constand was not re-traumatized when she gave or sold an interview to the National Enquirer about the event, just a week after talking to the detectives.
  12. Ms. Constand did not worry about being re-traumatized when she filed a lawsuit against Bill Cosby in March 2005.
  13. Ms. Constand’s lawyers Troiani and Kivitz did not worry about 12 women they found to testify against Cosby that they would be re-traumatized by telling their stories.
  14. Ms. Constand did not worry about being re-traumatized when she sued Cosby’s lawyer Martin Singer for negotiating a newspaper interview for Bill Cosby.
  15. Ms. Constand was not re-traumatized when she was deposed at the time of the lawsuit.
  16. Ms. Constand was not re-traumatized when Judge Robreno released bits and pieces of her sealed testimony and Cosby’s sealed testimony to the public in the Summer of 2015.
  17. Ms. Constand was not re-traumatized when the Washington Post and CNN and the N.Y. Times and hundreds of other sites released out of context bits and pieces of Cosby’s sealed testimony.
  18. Ms. Constand was not re-traumatized when DA Steele ran campaign ads reminding people that his opponent DA Castor did not prosecute Cosby in her case.
  19. Ms. Constand was not re-traumatized when she communicated with a number of other Cosby accusers on the internet in 2015, if not earlier.
  20. Ms. Constand was not re-traumatized when she decided to countersue Cosby in the Summer of 2015 for breaking his legal settlement with her.
  21. Ms. Constand did not worry about being re-traumatized when she agreed to help Montgomery County D.A. Steele reopen the case against Cosby that had been closed 11 and a half years before.
  22. Andrea Constand was not re-traumatized when she talked again about the case with Montgomery Country detectives in 2015.
  23. Ms. Constand was not re-traumatized when she talked a second time with Montgomery County detectives in 2015. That would be a total of four times, at least talking to the police.
  24. Ms. Constand did not worry about being re-traumatized when she sued DA Attorney Castor for not believing her in 2005.
  25. Ms. Constand was not re-traumatized when DA Steele released bits and pieces of her testimony about the event repeatedly over the last seven months.
  26. Ms. Constand was not re-traumatized when DA Steele released written statement by her from 2005 at the Preliminary trial hearing.

Only when taking away Dr. Cosby’s Sixth Amendment Rights does Steele express fears about her re-traumatization

Besides the amazing hypocrisy of this statement, one has to consider that a person has to be traumatized before they can be re-traumatized and no proof has been presented except her own claims that she ever was traumatized by the original incident involving a few minutes of mutual masturbation between a 30 year old college graduate and a 65 year old man who had been friends for over two years at that point.

Psychiatrists are divided about the nature of traumatization and if talking about something re-traumatizes a person. Rather, the whole basis of modern Freudian psychiatry seems to be that talking about traumas helps to cure them. That is why Freud’s technique was known as “the Talking Cure” and was not known as “the Talking Re-traumatization”.

Should we also close down all 1300 so-called Rape clinics in the United States, as they urge women to talk about rape and therefore could cause re-traumatization? Should we shut down all Woman’s Gender Studies courses as they talk often about rape and could cause re-traumatization.

Hopefully, the Supreme Court of Pennsylvania will agree with the Supreme Court of the United States and not take away Sixth Amendment rights to its citizens. The life and liberty of not just Bill Cosby, but every citizen of Pennsylvania, and possibly the United States, is at stake.

 

 

 

Joseph Cammarata – The Perfect Lawyer for the Seven Accusers

Cammarata, Jones and Davis     Before becoming famous for representing seven Cosby accusers in a defamation lawsuit, Joseph Cammarata was famous for representing Bill Clinton accuser Paula Jones in the 1990s. What few people know is how Cammarata and his partner Gilbert Davis ended up with most of the money from the lawsuit that she settled with President Clinton.

     After three years working on the case, Cammarata and Davis had negotiated a settlement of $700,000 with Clinton’s attorneys. Because of their fees, Cammarata and Davis would have probably gotten almost all of the money. Jones wanted to continue the case. Cammarata and Davis bailed on her. (see http://www.cnn.com/ALLPOLITICS/1997/09/09/jones/). They then put a lien for $800,000 against Jones for any settlement that Jones might get. (From St. Louis Post-Dispatch, September 24, 1997):

Paula Jones’ former lawyers have put an $ 800,000 lien on any settlement or damages award in her sexual harassment lawsuit against President Bill Clinton.
Attorney Joseph Cammarata said Tuesday that he and Gilbert Davis served notice on Jones, Clinton and two insurance companies that they hold a lien for hourly fees.
Cammarata and Davis withdrew as Jones’ counsel on Sept. 8 after disagreement with her over a settlement. They are entitled to compensation for the three years of work they did, Cammarata said.
“States provide statutes whereby an attorney doing work on a case is entitled to be paid on the case if there is a recovery,” Cammarata said.
Susan Carpenter McMillan, a spokeswoman for Jones, said the lien raises the financial stakes in the case.
“Now it’s got to be about money or she’s going to have an apology but be $ 800,000 in debt,” McMillan said. “Paula’s got to have enough money to pay her attorneys.”
Jones, now represented by a family friend acting as an unpaid attorney, faces a Nov. 12 deposition in Little Rock, Ark., where jury selection for the trial of her suit against Clinton is set for May.
While Jones’ former attorneys had, at one time, sought for her as much as $ 2 million in exchange for dropping the suit, sources close to Clinton’s legal team say his attorneys are adamant against settling the case for anything more than $ 700,000 – if at all.
In allowing the attorneys to withdraw on Sept. 9, U.S. District Court Judge Susan Webber Wright made a point of ordering that Cammarata and Davis were entitled to reasonable fees. In their three years of nearly full-time work on the case, each had already been paid $23,000.

     Jones was forced to settle the case the following year for $850,000 and no apology or admission of guilt from Clinton. The judge apparently awarded her $200,000 and the rest went to her attorneys. (https://en.wikipedia.org/wiki/Paula_Jones).

      The following year, 2000, Jones did a nude pictorial for Penthouse Magazine. According to Comwebwatch (http://conwebwatch.tripod.com/stories/2000/paula.html)

The people who once treated her every word as gospel are now either attacking Jones or are completely silent since Jones — whose accusations of sexual improprieties against President Clinton eventually ended in an impeachment trial — appeared in the December 2000 Penthouse magazine for a nude pictorial and interview.
Despite denying she would pose nude a few months earlier, Jones said she did it because she needed the money to pay legal bills and other expenses, money she said to pay for her children’s education and for legal expenses over dueling funds raising money in her name.
Paula Jones in Penthouse December 2000 Issue

     Don’t be surprised if Cammarata, who has spent his career on personal injury lawsuits, bails on the seven accusers in this case too. It probably won’t take three years before he realizes that he has a losing case and Dr. Cosby will not offer him a penny. Cammarata’s hourly rate has no doubt increased since the 90s, so each of the accusers will be left with legal bills in the hundreds of thousands. This will be besides any money the jury awards to Cosby for the ruthless campaign of character assassination they have waged against him.

 

Re-opening a Case Without New Evidence

7 million drugs for non-medical purposes      Some seven million people a month use prescription drugs for non-medical purposes. According to the National Institute on drug abuse 52 million people above the age of 12 have illegally used prescription drugs for non-medical purposes[1]. It is obvious that the use of prescription drugs for non-medical purposes is quite common.

Totonto Star Jan 21 2005

Notice that Constand just said “some pills that made her dizzy.” She does not say prescription medication. Even in her lawsuit in March, 2005, Constand did not mention prescription drugs as being involved in her case:

lawsuit in March 2005

It is evident that DA Kevin Steele and DA Risa Vestri Ferman did not find new evidence against Dr. Cosby when portions of his 2005 testimony were released in July of 2015. Rather, it appears that they used the new information released by Judge Robreno to manufacture new evidence against Cosby and bring a new and different case against him. Because the 2005 testimony had nothing to do with Constand’s 2005 case, it was not the reason Steele reopened the case.  It seems reasonable to conclude that Steele only used the new information as an excuse to create new charges against him.

The only new information released in the memoranda released by Judge Robreno in July 2015 was that Dr. Cosby had shared a prescription drug with a lover 39 years earlier. Cosby had admitted when questioned by Ferman on January 26 2005 that he had shared an over-the-counter cold medicine, Benadryl, with Andrea Constand before engaging in sex with her. The charge that Constand was bringing against Dr. Cosby was not that he used a prescription drug to incapacitate her, but that he gave her drugs that made her “dizzy” and she poorly remembered that he touched her breast and put her hand on his penis. She did not know the name of the drug that he gave her or whether it was a prescription or non-prescription drug. If Dr. Cosby gave her a prescription drug or a non-prescription drug it did not matter. The question was whether he gave the drug to her in order to drug her and have sex with her or not. DA Castor said that there was not enough evidence to charge Cosby. He said nothing about a prescription or non-prescription drug. Nobody did in 2005.

Steele makes a big deal out of the fact that Cosby, according to him, used a prescription drug, bringing forward this brand new, 2015, never-heard-before testimony from Constand’s mother:

He would have to look at the prescription bottle

This bringing up of a prescription bottle seems meant to tie in with Cosby’s quaaludes admission in 2005. If she had mentioned a prescription in 2005 then Steele could have somehow tied Cosby’s 2005 testimony to the 2005 case. As it is, mentioning it in 2015 for the first time after Cosby’s testimony was publicly released just means that she read about it in July 2015, or her daughter told her about it or Steele’s gang of detectives who interviewed her told her about it. It does not show that Cosby’s prescription drug testimony had anything to do with the 2005 case.

Sharing a prescription drug is a misdemeanor crime. It is a quite different type of crime than the crime that Andrea Constand described. DA Ferman was in charge of the investigation of Cosby in 2005. If she felt that Cosby had committed a crime by sharing a prescription drug, she could have asked him when she interviewed him on January 26 2005 for several hours. She did not.

If, in 2005, Dr. Cosby admitted he illegally shared a prescription drug 29 years earlier with a lover, and it became known during the initial investigation, it certainly would have not changed the decision by DA Castor or any DA that there was not enough evidence to prosecute him on the charges that Andrea Constand brought.

One could argue that the new evidence is that Dr. Cosby illegally gave a prescription drug to someone 39 years ago. Is this evidence for the crime of illegally giving someone a drug to incapacitate them and sexually abuse them? Absolutely not. People break the law to give other people prescription drugs for all sorts of reasons – to make money, to gain friendship, to do a friend a favor, to help a sick person who can’t afford the drugs, etc. Tens of Millions of people share prescription drugs. One recent 2014 study found:

     The prevalence rate for borrowing someone’s prescription medication was 5% to 51.9% and for lending prescription medication to someone else was 6% to 22.9%. A wide range of medicines were shared between family members, friends, and acquaintances…Sharing of many classes of prescription medication was common.[2]

According to the National Institute on drug abuse 52 million people above the age of 12 have illegally used prescription drugs for non-medical purposes. It is quite common to share prescriptions medications, done by ten million people a year. On the other hand, cases of people deliberately using drugs to make a long time friend dizzy and then sexually abusing them is extremely rare. We can figure out how rare by looking at the results of a 2013 recent study at a sexual assault center in Norway http://www.ncbi.nlm.nih.gov/pubmed/23910880%5B3%5D. They studied 264 sexual assault cases and this is the key finding: “57 patients (22%) suspected proactive DFSA, but only five had findings of sedative drugs that were not accounted for by self-reported voluntary intake. No cases could unequivocally be attributed to proactive DFSA.”[ DRSA stands for drugging-facilitated sexual assault.]
In other words, 57 patients thought they had been drugged with sedatives, but only 5 had sedatives in their body. It was impossible to tell if they had taken them voluntarily or not. At least 92% of women who thought they had been drugged were not. This alone suggests that there’s less than a 8% that Constand is correct when she says that she was drugged.

Five out of 264 would indicate that sedatives are used in about 2% of sexual assault cases. If we take the 2% statistic and apply it to the number of police reported sexual assaults in 2005 (Constand reported her sexual assault a year after it happened) we get this: 2% of 93,934 reported sexual assaults (https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2005) = 1,879. This is a reasonable estimate of how many drug-facilitated sexual assaults were reported in 2005. Let us assume that every single one of those reported assaults were true and involved sedatives and was done by a different person. If we assume 50 million people have illegally used prescription drugs for non-medical purposes, the odds are 26,609 to one that any person illegally using prescription drugs for non-medical purposes committed a drug-facilitated sexual assault. There is no connection between using prescription drugs for non-medical purposes and using drugs to assault a person.

There is no connection between the two behaviors. One can make an analogy to bouncing checks and robbing banks. Tens of millions of people write bad (bounced) checks each year. There were about 6,957 bank robberies in 2005 (https://www.fbi.gov/stats-services/publications/bank-crime-statistics-2005/bank-crime-statistics-bcs-2005). Bouncing a check at a bank and committing armed robbery are both illegal. That is about all they have in common. Bouncing a check does not make you any more likely to rob a bank. If someone is accused of committing armed robbery and the DA finds that there is not enough evidence to prosecute that person in 2005, it would be absurd and illegal for a new DA 11 years later to reopen the case because he found that the accused person had once bounced a check at another bank 39 years earlier. This is the same type of absurdity and illegally that went on with DAs Ferman and Steele in the Cosby case.

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[1] http://www.drugabuse.gov/related-topics/trends-statistics/infographics/popping-pills-prescription-drug-abuse-in-america
[2] In a study funded by the U.S. Justice Department in 2005, 45 different drugs that “have been or could be used in DFSA (drug-facilitated assisted sexual assault) were studied. Quaaludes was not included.

The report studied 144 “willingly enrolled” women who went to clinics claiming that they had been drugged and sexually assaulted.  The study found only 40% of the women truthfully reported their illegal drug use. It concluded “the subject’s own drug use was more likely a factor in facilitating a sexual assault than surreptitious drugging.

Estimates of the Incidence of Drug-Facilitated Sexual Assault, Negrusz, Adam, Juhascik, Adam, Gaensslen, R.E.

[3] http://www.medscape.com/viewarticle/824561 American Journal of Public Health,

Prescription Medication Sharing: A Systematic Review of the Literature, Kebede A. Beyene, MSc; Janie Sheridan, PhD; Trudi Aspden, PhD

[4]J Forensic Leg Med. 2013 Aug;20(6):777-84. doi: 10.1016/j.jflm.2013.05.005. Epub 2013 Jun 25. Ethanol and drug findings in women consulting a Sexual Assault Center — associations with Clinical Characteristics and suspicions of drug-facilitated sexual assault.Hagemann CT, Helland A, Spigset O, Espnes KA, Ormstad K, Schei B.

 

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