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

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

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.




Mathematical Proof of Conspiracy Against Bill Cosby

Time Magazine Cover

This is the outline for a deeper scientific study that needs to be done.

Saturday Evening Post

Bill Cosby is one of the most important civil rights leaders, educators, and entertainers in the history of the United States. In 2005, when he was 65 years old, five women publicly accused him of drugging and sexually assaulting them. One claimed it happened one year in the past [1], two claimed it happened about 20 years in the past[2] and two claimed it happened 30-35 years in the past [3]. Nobody accused him for the next nine years. In 2014-2015, when he was 77 years old, some 35 more women accused him on television and in the mass media of drugging and assaults, from 7-50 years in the past,  All of the public accusers in 2005 were part of a lawsuit against Cosby filed by attorneys Deloris Troiani and Bebe Kivitz.  Apparently six of the 2014-15 accusers were non-public accusers from the 2005 lawsuit.

Most of the new accusers in 2014-15 were clients of attorney Gloria Allred or her associates. Besides the 40 women accusing him of drugging and sexual assault, an additional 20 women went to the mass media and made other much less sensational accusations against him (ranging from “rough kissing” to “spreading rumors” to “touching a woman’s breast in a public restaurant”).

All of the accusers, with the exception of the first, admitted to seeing or hearing reports of Cosby drugging and assaulting women in the mass media before going public with their claims. This suggests that the mass media coverage was an important factor in their making these claims.

The one thing that all the drug and sexual assault accusers have in common is that at the time of the incident/incidents, none went to the police to file a report, or to a doctor, clinic or hospital to be tested after being drugged, none got a lawyer to file a lawsuit, and none went to a reporter to offer their stories. None wrote a letter or made a diary entry. None told a relative or a friend who wrote a letter or publicized it in any way.

What are the odds that all these woman are telling the truth about the drugging and sexual assault and none of them going to the police, or a doctor, or a clinic, or a lawyer, or talking to a reporter or writing a letter, (either signed or anonymous), or telling relatives or friends who did any of these things?  This article attempts to quantify those odds. While no scientific evidence exists for calculating the odds of an accuser not doing all of the these things, there is scientific evidence available to calculate the odds of an accuser not going to the police. Logically, not going to police does not preclude women from going to a doctor, clinic, lawyer, reporter, or writing a signed or anonymous letter about it, or telling relatives or friends who did any of these things. Thus we would expect women to be able to present more physical evidence than just going to the police and generating police reports.

The idea that one of the most well known, beloved, celebrated, and honored men in American history should also be a secret serial criminal suggests a fantastic breakdown in the American justice system for 50 years or a mass conspiracy against Dr. Cosby. For the purposes of this article, we shall define a conspiracy according to 18 U.S.C. 371: which makes it

a separate Federal crime or offense for anyone to conspire or agree with someone else to do something which, if actually carried out, would amount to another Federal crime or offense. So, under this law, a ‘conspiracy’ is an agreement or a kind of ‘partnership’ in criminal purposes in which each member becomes the agent or partner of every other member. as any untrue accusation made public with the help of lawyers and the mass media[4].

Reasons for Not Going to Police that are Not Scientifically Backed

Accusers and others have given numerous reasons for not reporting the crimes in a timely fashion. For example, that the perpetrator was a wealthy, black man. There is no scientific evidence that victims of rape are less reluctant to go to the police when their attackers are wealthy or black than when their attackers are poor or white.

Frequently, the accusers say that they feared retaliation in their careers. There is evidence that sexual assault victims are more reluctant to go to the police when they fear physical or other retaliation. However, Dr. Cosby was a comedian and had never shown any significant indication of violent behavior, there is no reason to believe that any of the accusers felt physically threatened by Cosby. Because of his extreme gentleness and warmth, demonstrated in thousands of live concerts, hundreds of television shows, hundreds of well publicized charitable activities, and testimonies from hundreds of people who worked with Cosby, none of the accusers would have had any reason to expect any physical retaliation for going to the police. As far as retaliation to their careers, since Cosby was only one of hundreds of Hollywood producers, there was also no reasonable expectation that he could hurt their careers if they went to the police. One can question if there is any evidence of Hollywood or New York actors or actresses being blacklisted or seriously hindered from work over the last 50 years due to criminal reports or lawsuits. Other explanations, such as Cosby being too powerful to report to the police, lack any scientific evidence to back them up.

In fact, models and actresses, the vast majority of the accusers, are taught to act brash and bold, and often welcome publicity.  One can logically conclude that they are far more likely to go to the police than the average person

Reported and Unreported Rape Statistics
While not all rapes and attempted rapes are reported to the police, a great number are. Since 1973, the Department of Justice has been using annual surveys to scientifically determine how many rapes/attempted rapes are reported and go unreported. Based on these reports we can determine mathematically the odds that all these women were actually assaulted and did not go to the police.

By adding up the percentage of reported rapes each year from 1973-1992, and dividing by 20, we find that the average annual number of reported rapes was 52%. This means 48% went unreported annually on average.  (Note: all data can be found at http://www.bjs.gov/index.cfm?ty=dcdetail&iid=2450 It is in “Criminal Victimization 1992”).

Criminal Victimizations 1992 Table 5 Reporting Victimizations to the Police
Total = 1044% / 20 years = 52.2% reported per year on average

Rape was defined this way in the surveys from 1973 to 1992. (Note: from “Crime Victimization in the United States, 1991.”)

Rape — Carnal Knowledge through the use of force or the threat of force, including attempts. Statutory rape (without force) is excluded. Both heterosexual and homosexual rape are included.

The Important Change in the Definition of Rape in 1993 in the Annual Crime Surveys
In the 1993 survey published in 1996, the definition of rape was drastically broadened. (Note: from “Crime Victimization in the United States, 1993”)

Rape — Forced sexual intercourse including both psychological coercion as well as physical force. Forced sexual intercourse means vaginal, anal or oral penetration by the offender(s). This category also includes incidents where the penetration is from a foreign object such as a bottle. Includes attempted rapes, male as well as female victims, and both heterosexual and homosexual rape. Attempted rape includes verbal threats of rape.

The main and essential difference is that “psychological coercion” has been added. The term “psychological coercion” is extremely broad and can be interpreted in any number of ways. It is often impossible to distinguish between “coercion” and “offers.” For example, if a man offers a woman cocaine, or a mink coat, in exchange for sex, that can be considered coercion and therefore rape. If a woman offers a man sex in exchange for cocaine, or a mink coat, that is considered an offer and not considered rape. Yet the actions will be exactly the same in both situations.
The effect of broadening the definition of rape to include non-violent “psychological coercion” was to cause a jump in the unreported rape rate. In 1993, unreported rapes jumped from an average of 48% that it had been for the previous 20 years, to 71%. This was 12% higher than the highest previous one year number of unreported rapes (59% in 1980) in the 20 year period from 1973-1992. Over the next 18 years, from 1993 to 2010, the average number of unreported rapes was 66%.
Victimizations not reported to the Police 2006 to 2010
There is no evidence and no reason to believe that the police reports of violent rape/rape attempts went down from 1993 to 2010. Rather it is probable that the expansion of the definition to “psychological coercion” caused the increase in unreported rapes from 48% average per year to 66% on average.

None of the drug and sexual assault accusations against Dr. Cosby would have been reports for non-violent psychological coercion. Because they involved drugging, they would have been reports for actual violent rape/rape attempts. Therefore it makes sense to use the 52% reported violent rape/rape attempts that was established from the data from 1973 to 1992.Also, the majority of the incidents are alleged to have happened during this time.

This means that if a drugging and sexual assault did take place, there was a 52% chance of that person going to the police. Cosby would have had a 48% chance of the woman not going to the police. This means that the chances are 52% that any specific one of the accusers would have gone to the police. If  the first two accusers are telling the truth, Cosby would have had a .48 x .48 chance or a .23 chance of not being reported by one of these two women. There is thus a less than a one in four chance that any two of the 40 accusers selected at random are telling the truth.  If the first three women are telling the truth, Cosby would have had a .48 x .48 x .48 chance or an .11 or 11% chance of not getting investigated by the police. Another way of looking at it, is that the odds are 89% that at least one of the first three women are not telling the truth.
Assuming these women were normal assault victims and had a normal chance of reporting to the police, here are the odds of the chances that 1-40 of the women are telling the truth about assault  and no one going to the police:
One accuser accusations true – 48%, accusations false – 52%
Two accusers accusations true – 23%, accusations false – 77%
Three accusers accusations true – 11%, accusations false – 89%
Four accusers accusations true – 5%, accusations false – 95%
Five accusers accusations true – 3%, accusations false – 97
10 accusers accusations true – .065%, accusations false – 99.94%
20 accusers accusations true – .00000042% (42 in 100 million), accusations false – 99.999958%

30 accusers accusations true – .00000000027 (27 in 100 billion), accusations false – 99.999999973%

40 accusers accusations true – .00000000000018 (18 in 100 trillion), accusations false – 99.99999999999982%.

Thus the odds of all of the accusers telling the truth are 18 in 100 trillion or less than 2 in 10 trillion.

Calculation of Confidence Level

Let us assume for our null hypothesis that The women accusing Dr. Cosby are not a random and independent sample from the population in the study of women rape victims from 1973-1992 as portrayed in the U.S. Department of statistics when it comes to reporting to the police.

Since the number of alleged drug and assaults was established at 52%, we can round that off to 50% or the same odds as a coin flip which makes the probabilities a binomial distribution. We can calculate a confidence level for the 40 allegations that we are dealing with.

For a binominal, Standard deviation = SQR{(N*p*(1-p)}.

Thus, Standard deviation = SQR{(40*.5*(1-5)} = SQR{(40*.5*.5)} = SQR 10 = 3.16227766017 = ~ 3.162

Confidence level for one standard deviation or Z is 68.8%, thus sample average plus or minus sample standard deviation equals  x̅ (±)s. Since the average of people going to the police in a binomial sample of 40 is 40/2 or 20, we can say that 20 (±) 3.162 or between 16.838 – 23.162 would go to the police with a 68.8% confidence level.
A Z score of 2.59 would give us a 99% confidence level. Thus 2.58(Z) = 2.58(3.162) = 8.15796 or ~8.16. The 20 average reports would allow us to expect 20 (±) 8.16 or between 11.84 to 28.16 police reports with a 99% confidence level.

Since 12 to 28 of the alleged victims did not report to the police, we can say with a 99% confidence level that the null hypothesis is wrong. The women accusing Dr. Cosby are not a random and independent sample from the population of women rape victims from 1973-1992 as portrayed in the U.S. Department of statistics when it comes to reporting to the police.

Does this mean that the odds are equally great that some of the accusers are telling the truth?

The odds that an accuser is not telling the truth increases exponentially with each additional accuser. With 40 accusers, we should have expected 20 or 21 to have gone to the police. The fact that none did, can only be reasonably explained by this not being a random sample of sexual assault victims, which points in the direction of a conspiracy. This should not be taken to mean that it is likely that 19 or 20 are telling the truth. If half are implicated in a conspiracy, there is reason to believe that the other half are also part of that conspiracy (or conspiracies). If we find that 40 people claim to see Big Foot or a wizard flying through the air, and we find that 19 of them are lying, it does not mean that the rest are telling the truth, but it suggests strongly that all are lying or mistaken and have entered into a conspiracy with each other.

It should be recognized that going to the police was only one of a number of ways that the accusers could have provided evidence for their claims. They could have had drug tests done, hired lawyers, called reporters, written letters to friends or relatives, written anonymous letters to the mass media, written to companies employing Dr. Cosby, or told friends and relatives, who, in turn, could have notified authorities or written letters.

Based on their not reporting their alleged crimes to the police, and Department of Justice crime statistics, there is at least a 52% chance of any accuser falsely accusing Dr. Cosby.  The lack of any written evidence generated at the time that the incidents were alleged to have occurred would and admissions by all the accusers that they did not seek medical or legal or write any complaints or include direct references to the event increase those odds enormously. The chances that these accusers are telling the truth and are not part of a conspiracy become less and less as more accusers come forward. The chances of this being a conspiracy against Dr. Cosby increase exponentially with each accuser. The chances of conspiracy against Dr. Cosby are at least a trillion to one in favor, unless some other reasonable explanation for the lack of evidence to confirm any of the accounts is found.

Basically, a 52% chance of going to the police is very close to 50%, which is the odds of a coin flipping heads or tails. If all the women are telling the truth, each time that there was a drugging and assault, Cosby was flipping a coin. According to them it came up the same  40 times in a row. This gives us a result of .0000000000009 or 9.094947e-13.The odds against this happening are .5 to the 40th power or 9,999,999,999,999 to 1 (~ten trillion to one). Assuming that the women are a randomly and independently selected group of women, the odds that there is a conspiracy against Dr. Cosby are greater than 10 trillion to one.

We also found with a 99% confidence level that 12-28 of the 40 accusers should have gone to the police if all 40 of these people had been assaulted. The fact that none did suggests that this was not a random and independent sample of actual rape victims.



[1] Andrea Constand

[2] Barbara Bowman, Beth Ferrier

[3] Shawn Berkes, Tamara Green

[4] http://www.lectlaw.com/def/c103.htm

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.


[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.



Why I believe Dr. Cosby Did Not Give Andrea Constand Any Pills On the Night They Had Sex

No Benadryl

This is from the Montgomery County District Attorney’s Charges against Dr. Cosby: (from http://www.scribd.com/doc/294315078/Criminal-Complaint-William-Cosby)He would have to look at the prescription bottle

Did Dr. Cosby give Andrea Constand pills on the night they had sex? Ms. Constand says yes, albeit she does not know what the pills were. Dr. Cosby says yes, too, in a 2005 deposition saying that they were benadryl. They were both there and they both agreed that Dr. Cosby gave Constand pills.

Although, it is counter-intuitive, I believe there is strong evidence that both are having false recollections or saying false things, and Dr. Cosby did not give Andrea Constand any pills in the night in question.

Andrea Constand’s False Memory

In the case of Andrea Constand, it is easy to see why she falsely remembered getting pills from Cosby. First, it should be mentioned that she was 31 years old, unemployed, and living in her parents’ house. She must have been broke as no 31-year-old sexually active woman would wish to be in her parents’ house unless she lacked funds for an apartment. This is a primary economic reason she might consider a lawsuit against a wealthy man with whom she had consensual sex on one night a year earlier. However, there are also psychological reasons to consider for why she would falsely remember the incidents in question.

She identified herself as a lesbian and yet had sex with a man, a man old enough to be her father. She may even have enjoyed herself. People often have sex and regret it or are repulsed by it later. It is easy to understand why she would not wish to believe that it was something she had consciously wanted or done. It would have threatened her identity as a pure lesbian. The age aspect might have brought up unpleasant even incestuous feelings as well.

She may have also felt cheated, perhaps expecting that Cosby, who was rich, should have given her something, maybe a job offer. She said that she had been unhappy with her job as a daily manager for the Temple Woman’s Basketball Team, which she had been doing for about four years at that point. It did not bring her a step closer to becoming a basketball coach, which was her stated desire when she began.

She felt used by Cosby for not giving her anything in return for the sex and she felt that she had betrayed herself as a committed lesbian. How could she explain what happened without feeling used and embarrassed. The logical solution to her problem was to deny that the sex was consensual. She did not have sex became she wanted to, but because Cosby made her. How did Cosby make her?

She was 5 foot, 11 inches, almost as tall as the 6 foot 1 inch Cosby and being 35 years younger and an excellent athlete, he could not have used physical force and therefore he must have tricked her into the sex. She must not have been in her mind because she is a committed lesbian in a committed lesbian relationship at the time and lesbians do not have sex with men. She must have thought herself out of her mind to do it. How did Cosby get her to be out of her mind? After due consideration, she may have considered that she must have been drugged. This was her logical analysis of what happened to her. The drug must have affected her and made her do something that she would not otherwise have done. If she did not remember why she did it, it was because she had been drugged. Once she knew that she had been drugged, it would be easy for her to imagine and believe Cosby had drugged her.

How do we know that she imagined the drugs and it did not really happen to her? I think it is the inexplicable fact that she imagined Cosby telling her that it was some kind of herbal medicine, but he does not tell her the name. People almost always want to know the name of drugs they take. If the drug doesn’t work, they want to avoid it in the future. If the drug does work, they want to know what it is so they can use it again. Having known him for two years, Constand certainly knew that his Ph.D. degree was in education and he was not a medical doctor. As a professional athlete she must have had an exceptionally good appreciationion for how drugs could affect her body. She must have taken them in her career when injured or not feeling well. If Cosby had given her drugs, there is a great chance she would have asked what it was.

Also, if Cosby did not tell her what it was, she certainly would have asked him what they were when she woke up the next morning. She would have wanted to know if the effect was normal or if her body had reacted in an abnormal manner. If it had “paralyzed” her or made her “dizzy” she certainly would have asked Cosby what it was, at the very least to be able to avoid the drug in the future.

If Cosby had refused to tell her, she would have remembered that too. The fact that she neither asked the name of the drug before or after makes it highly unlikely that she took any drugs at all.

Constand’s mother has testified that Cosby did not tell her the name of the drug when she asked him in telephone conversations a year later. This also seems absurd. Cosby would have immediately told her the name the drug, if it was harmless. If the drug was not harmless, he would have simply made up the name of a harmless drug and told her that. He would have lied to her. Cosby is one of the greatest improv comics in history. It is impossible to believe that he could not have come up with the name of a harmless drug on the spot. Moreover, if someone gives a person drugs, they must expect that the person will ask them “What it is” as is normal. They would prepare an answer in advance. They would say something like “This is Butterbur, it is a purified root extract of Petasites, and it is a kind of natural herbal advil. It has been used in the Balkins for thousands of years. Real doctors are not evasive when it comes to telling people the names of drugs they are giving. Cosby played a doctor for 8 years on television. He certainly knows this.

Thus the reason we can be reasonably certain that the drugging never happened as Constand said was: 1) she did not ask the name of the drug before taking them, 2) she did not ask the name after the allegedly bad effects from the drugs, neither the next morning, nor for a year, 3) Cosby did not tell Constand the name of the drug or anything about it, something he would have done to encourage her to take it. 4) the mother claims Cosby did not tell her the name in telephone calls a year later, something Cosby would have definitely done to sooth her concern whether he had given her harmless or harmful pills.

Bill Cosby’s False Memory

It is easy to see why Constand would falsify the fact that Cosby gave her drugs that night, but why did Cosby believe he had given her drugs that night, and why did he say in his testimony that it was the over-the-counter medicine Benadryl?

The reason for Cosby’s falsification is easy to understand if we put ourselves in his shoes. Suddenly, a year after having consensual sex with a woman, her mother calls you. She starts screaming hysterically that you drugged and raped her daughter and demands an apology. This is either a naturally distraught mother or an extortion attempt, (and Cosby had faced many extortion attempts in his career.) Naturally, you try to calm her down. You tell her that that the sex was consensual and you did not give the woman any drugs. No doubt the woman insists you are lying and you did drug her. You search your memory and you honestly don’t remember very much about the night except the sex. Cosby was 65 years old. I am 62 years old and if anybody asked me about a party I attended a year previously I would be unable to remember many details about it. If someone called me a year later and said that I had given a woman a drink containing a drug at the party or given her pills and something terrible had happened as a result, what could I say, but “I don’t remember.” Even at my age, I am often embarrassed by the things I don’t remember. for a example, a student might tell me that I promised to let them take a test a week later because they were traveling the week of the test. I don’t want to tell the student that I have no recollection of telling them that. It sounds like something I might have done. Rather than fight with the student, I simply say, “Yes I did promise you that.” It is simpler to agree than admit I don’t remember and fight about it.
If the mother insisted that there were witnesses, and I didn’t remember, I would say that I may have done it, but I would insist that the drink or pills were harmless. If she demanded to know the name of the drink or pills. I would say something like, “let me check and I’ll get back to you.” I would check my medicine cabinet and see what pills I had or try to remember what pills I had recently taken that I might have given somebody. I believe we can see the same type of reaction with Cosby.

He probably denied the giving of any drugs in the first two and a half hour phone conversation. Cosby probably assumed that the woman was helping her daughter in an extortion plot against him. It was a natural assumption. At least several woman had done it to him previously. Cosby would have wanted to talk with her about her settlement terms to take back the police charge, He knew the charge was false, but it could damage his reputation. It would have been the simplest, quickest and easiest way to handle the situation. Cosby also probably had good feelings towards Andrea, who was perhaps his last lover outside his marriage. He would perhaps grant her mother an apology of sorts and grant that the sex had happened and he would even grant that he may have given her some pills. These would small sacrifices to have the case settled and over quickly. He was engaged in an important tour at the time trying to tell people how important the family unit was to progress in black communities. The fact that Cosby did not name the pills, according to the mother, is strong evidence that there were no pills. If they were harmless pills, Cosby would have named them. If they were not harmless, he would have lied and said that they were something harmless. The fact that he did not name them, points to him not giving any pills.

It was probably a few days later that Cosby was told that the mother had recorded her telephone conversations with  Cosby was trapped. If she recorded him saying he gave her a drug, he could not deny it in his police interview without looking like a liar. My guess is that the only non-prescription pills he had in the house was Benadryl. He therefore said or may even have believed that he gave her some Benadryl tablets.

The fact both Cosby and Constand did not know the name of the pills is a very strong indication that he did not, in fact, give Andrea Constand any pills when she came over that night.

At one point in the testimony Cosby describes something very strange, the cutting of a pill to make three pills out of the two he gave her. Here is a bit of testimony from the documents released by Judge Robreno in July 2015:

three pills or two

It is hard to believe the claim that he cut one of two pills in half to give to Constand. She was complaining of stress and sleeplessness. She didn’t have a sore throat or trouble swallowing. Being six foot tall, and a normal human being, she should have been easily able to digest the capsules as portrayed in this image.

ng on is that Cosby is trying to reconcile his testimony of two pills with Constand’s description of three pills. He is just trying to recreate the scenario based on what he would have logically done in order for her to believe she had taken three pills. If length of pills was a problem, why not cut both pills and give four parts? This suggests he doesn’t remember giving her the pills at all. Ironically, This suggests he doesn’t remember giving her the pills at all. If he really remembered giving her two pills, he would have stuck with his answer that he gave her two pills and not change his answer to try to make three out of two. He simply would have said that she made a mistake.

Cosby believed Constand’s account of the pills just as he believed Tawana Brawley when she falsely claimed to have been raped in 1988.

.Boston Herald Feb 11 1988Boston Herald, Feb. 8, 1988.

Cosby simply believed Andrea Constand when she said he gave her three pills before sex, not because he remembered it, but because it was part of his natural tendency believe people.

Here are the five facts that make a strong argument for the case that Cosby did not give Constand any pills that night.

1) Constand did not ask the name of the drug before taking them. Getting the name of a pill someone is giving you is not an issue of trust, it is a matter of rational intelligence. Every athlete and college graduate knows the good and bad effects that drugs can have on a person. Constand was 30 years old, not ten years old at the time.

2) She did not ask the name after the allegedly bad effects from the drugs, neither the next morning, nor for a year,

3) Constand claims that Cosby did not tell Constand the name of the drug or anything about it. This is something that he would have done to encourage her to take it if he had actually given her any pills.

4) Constand’s mother claims Cosby did not tell her the name in telephone calls a year later. This is something Cosby would have definitely done to sooth her concern whether he had given her harmless or harmful pills.

5) Cosby absurdly claimed that he cut one of the two pills in half because they were too long. This is highly unlikely and is best explained by the idea that he did not remember giving any pills at all, but reconstructed it based on Constand’s belief that he did.

One should consider how many people incriminate themselves after being interrogated by police, actually believing they did a crime, and then later recant their confession. We should look at the facts and the whole situation to find the truth.

Here is a part of an hilarious comedy routine by Bill Cosby that he did in the concert movie “Bill Cosby: 49”.

Cosby actually has an excellent memory, and the memory lapses that he talks about here are normal. It is also normal is to forget most of the things you did on a typical day a year ago. It is normal to reconstruct a memory based on what somebody says you did.