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The pesky Constitution
Bob Franken.jpg
Bob Franken is an Emmy winning, syndicated columnist. - photo by File photo

Gloria Allred, who represents more than 30 of Bill Cosby’s accusers, attributed his release from prison by the Pennsylvania Supreme Court to “technical grounds.” Another who charged him of sexual assault called it a “legal glitch.” 

That “legal glitch” and Allred’s “technical grounds” are not trivial, unless the United States Constitution is of little consequence. Unless the 5th Amendment to the Bill of Rights – which protects, among other things, a person from being “compelled in any criminal case to be a witness against himself” – is insignificant.

In Bill Cosby’s case, the sexual abuse allegations against him had been circulating publicly for years when a prosecutor worked a deal with him by promising that nothing Cosby said in a civil lawsuit deposition could be subsequently used as incriminating evidence. But a subsequent prosecutor broke the deal, and years later Cosby was indicted and convicted based on exactly that evidence. He served three years of his sentence before the state’s Supreme Court ruled that his conviction was a breach of his 5th Amendment rights against self-incrimination, or, as the justices wrote, such a “vast” violation of the Constitution that he could never be tried again because also in that same 5th Amendment double jeopardy applied.

No matter how obvious the ruling, it clobbered what is now called the Me Too community. Everybody who is anybody who’s attached to the issue was flabbergasted. “Sick to my stomach,” said one. Another exclaimed, “My hands were shaking.”

An attorney representing women accusing Harvey Weinstein, the first villain of the movement, said, “At the end of the day, rulings like this mean survivors of sexual abuse will be less willing to step forward, afraid that the legal system is stacked against them.”

The Constitution is frustrating. It often protects the guilty, at least the wealthy who get off even though everybody knows he or she did the deed. You can be sure the Pennsylvania ruling is being scrutinized by Weinstein’s lawyers even as we speak, or write, or read ... whatever.

But imagine what America would be like without the 5th Amendment. We’d have coerced confessions and repeat harassment of an individual by vindictive officials. 

The body of Me Too jurisprudence is still being developed. The Cosby case is a reminder that we need to do better as a country, writing clear laws that stand up to constitutional scrutiny, but that apply to the alleged offender while satisfying the victim’s rights and society as a whole.

While we’re at it, we need to address the financial gap between law and justice. Somebody as prosperous as Bill Cosby can have at his disposal a “legal team,” charging huge billable hours, to scour every loophole, real or imagined. 

An indigent defendant is entitled to a public defender, who is more likely than not to be someone who freshly passed the bar, has an overloaded case file and the first words out of his or her mouth are “Let’s try to cop a plea” – innocent or not. Or there’s the poor schlub who may not be below the poverty line, but will be by the time he bankrupts himself paying off his legal bills if he gets in trouble.

Meanwhile, the deep pockets of a Bill Cosby, Harvey Weinstein or Donald Trump – who has made a career of using the system as a weapon – can easily defend themselves when the weapon is turned on them.

Yes, we celebrate the framers of the Declaration of Independence with the annual fireworks orgy, but it’s the Constitution that is the nation’s user manual, even though it was authored by and limited to white guys. Even with that huge shortcoming, it’s a blueprint for democracy, not just a compilation of “legal glitches.” Unfortunately, its protections are only available to those with money, which is not democracy at all.

Bob Franken is an Emmy Award-winning reporter who covered Washington for more than 20 years with CNN.

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