Some see injustice in our criminal system in those who are prosecuted.
Yesterday, in New York, there was a staggering demonstration of injustice in who wasn’t prosecuted.
The decision not to take Andrew Cuomo to trial for allegedly groping a state employee at the Governor’s Mansion is an undeniable example of the powerful and privileged being given special treatment. It was a clear demonstration of special people playing by special rules.
The allegation has been on national television. A young, female state employee said she was called to the Governor’s Mansion to fix an app on Andrew Cuomo’s phone. This came after what objectively seems to have been a period of grooming or attempted seduction. She says that as she moved toward the door of his office, to leave, that he made an advance on her, embracing her, and sliding his hand up her blouse and fondling her breast through her bra.
It was a claim investigated by the state attorney general and by outside counsel retained by the Assembly Judiciary Committee, both of whom found it credible.
So did the sheriff of Albany County, where the alleged incident transpired. He brought a forcible touching charge against the former governor last October.
That’s three separate and independent bodies, all finding the claim believable, and all of them belonging to the governor’s Democratic Party.
That would seem to satisfy the Fourth Amendment requirement of probably cause.
And if the accused was anybody but Andrew Cuomo, it would have. And there would have been a prosecution, resulting in either a plea or a trial.
But Andrew Cuomo is special. At least in the eyes of Albany County District Attorney David Soares, who yesterday said that his office – having asked the court to drop the sheriff’s charge against Cuomo – would bring no charges of its own. He claimed it was in the interest of justice, as he could not present a case that would lead to a conviction.
Which is insane.
Cases exactly like this are adjudicated every day. The law has long since figured out how to handle “he said, she said” cases, with the decision of credibility falling to juries and judges – finders of fact – not prosecutors. To proclaim to the nation that an unwitnessed act of sexual misconduct cannot be prosecuted is to say to every victim that she or he has no hope of justice; and to say to every perpetrator that as long as there’s no witness, you can get away with anything.
In this case, the cooperative accuser could be put on the witness stand. Her texts and personal conversations with others about the matter could be presented as evidence. That would be her side. Then Andrew Cuomo could be put on the witness stand, with any other evidence his counsel might present. Then the jury – or judge, if it was a bench trial – could decide which claim was more credible. If the prosecution showed beyond a reasonable doubt that the accuser was telling the truth, Cuomo is convicted. If the prosecution could not, Cuomo would be acquitted.
That happens every day all across the country.
But not for this defendant in this county.
He never has to answer this charge, and his alleged victim never gets her day in court.
She is wronged, and he is incalculably benefited. And that is bull crap.
And it seems calculated to protect Andrew Cuomo not only from criminal prosecution, but from having to testify publicly under oath about workplace sexual misconduct and his efforts to conceal it. Had there been a trial, the prosecution – had it actually done its job – would try to present evidence of a pattern of conduct, potentially creating a platform for the public scrutiny of the behavior the attorney general and Judiciary Committee said they found.
It would also provide a way for the public to hear her and to hear him, and to decide whose version was believable – who was telling the truth and who was lying. Had there been a trial, Andrew Cuomo would likely have been destroyed in the public eye. Most would have concluded that he was the liar, and that he was guilty. Instead, he will be able to claim that he was exonerated, that he was never tried, that he is innocent.
A prosecution would have given justice its day – for both the accuser and the accused.
But that won’t happen.
Because David Soares saved Andrew Cuomo.
Because the system is rigged.
If not by the color of your skin, then by the size of your wallet, and the power of your politics.