Why was Bill Cosby’s conviction reversed?
Much of the debate and commentary since the Pennsylvania Supreme Court’s decision to overturn Cosby’s verdict has centered on whether he was innocent or guilty. After reading the court’s written opinion (all 79 pages), it seems reasonably clear that he is guilty of 1) the charges and 2) many more incidents of sexual misconduct and rape that were not charged.
It’s also clear that the Court’s decision to reverse Cosby’s conviction was not based on the facts of the case, Cosby’s guilt or innocence, or anything that happened during his trial.
It was based entirely on the misconduct of Cosby’s new prosecutor in taking him to trial after his old prosecutor had agreed to dismiss the case and after Cosby had relied on that agreement to waive his Fifth Amendment rights in the alleged victim’s civil case against him.
Cosby’s Conviction was Reversed Due to Prosecutorial Misconduct
Cosby’s original prosecutor dismissed his charges after determining that there was insufficient evidence and that their complaining witness had credibility problems. The original prosecutor’s intent was to remove the threat of prosecution so that Cosby could no longer claim his Fifth Amendment privilege against self-incrimination in the complaining witness’ civil case.
As the Court pointed out in their 79-page opinion:
Having determined that a criminal trial likely could not be won, D.A. Castor contemplated an alternative course of action that could place Constand on a path to some form of justice. He decided that a civil lawsuit for money damages was her best option. To aid Constand in that pursuit, “as the sovereign,” the district attorney “decided that [his office] would not prosecute  Cosby,” believing that his decision ultimately “would then set off the chain of events that [he] thought as a Minister of Justice would gain some justice for Andrea Constand.” Id. at 63-64. By removing the threat of a criminal prosecution, D.A. Castor reasoned, Cosby would no longer be able in a civil lawsuit to invoke his Fifth Amendment privilege against self-incrimination for fear that his statements could later be used against him by the Commonwealth.
…the former district attorney further emphasized that it was “absolutely” his intent to remove “for all time” the possibility of prosecution, because “the ability to take the Fifth Amendment is also for all time removed.”
Which is exactly what happened. With no possibility of criminal prosecution in the case, Cosby did what the prosecutor wanted him to – he testified under oath in his depositions, made multiple incriminating statements, and the complaining witness received $3.38 million dollars in the resulting settlement.
For a new prosecutor to then charge and prosecute him again for the same alleged crime, after he was induced to make incriminating statements in exchange for the dismissal, and after the alleged victim had received $3.38 million dollars in her civil case, was unethical, unjust, and looks a lot like fraud on the part of the prosecutor’s office and the alleged victim.
It Doesn’t Matter if the Agreement was In Writing
The trial court denied Cosby’s motion to dismiss based on the original prosecutor’s agreement to dismiss the charges because the agreement wasn’t in writing:
Specifically, the court noted that Cosby was represented at all times by a competent team of attorneys, but none of them “obtained [D.A.] Castor’s promise in writing or memorialized it in any way.” Id. at 65-66. The failure to demand written documentation was evidence that no promise not to prosecute was ever extended. For these reasons, the trial court found no legal basis to estop the Commonwealth from prosecuting Cosby.
The Pennsylvania Supreme Court found that it doesn’t matter if the agreement was in writing, however. The first prosecutor told the current prosecutor that he had agreed not to prosecute Cosby so that Cosby would give truthful testimony at his civil depositions and so that Cosby could not invoke the Fifth Amendment.
The first prosecutor also told the current prosecutor that his intent was to “confer transactional immunity” on Cosby.
It doesn’t matter what you call it – detrimental reliance, estoppel, transactional immunity, or just holding a prosecutor’s office to their word, the decision to go forward after Cosby relied on the first prosecutor’s agreement was shady, unethical, and unfair, and that is what resulted in the reversal of Cosby’s conviction:
For the reasons detailed below, we hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced. Prosecutors are more than mere participants in our criminal justice system. As we explained in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018), prosecutors inhabit three distinct and equally critical roles: they are officers of the court, advocates for victims, and administrators of justice. Id. at 52. As the Commonwealth’s representatives, prosecutors are duty-bound to pursue “equal and impartial justice,” Appeal of Nicely, 18 A. 737, 738 (Pa. 1889), and “to serve the public interest.” Clancy, 192 A.3d 52. Their obligation is “not merely to convict,” but rather to “seek justice within the bounds of the law.” Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978).
The prosecutor’s “obligation is ‘not merely to convict,’ but rather to ‘seek justice within the bounds of the law.’
Cosby’s Conviction was Obtained Using His Deposition Testimony
It sure looks like the prosecutor’s office agreed to dismiss his case and provide him with transactional immunity, waited until he provided deposition testimony in reliance on the prosecutor’s promise, and then used his deposition testimony to prosecute him again.
They not only used his admissions in the alleged victim’s case, but they also used his deposition testimony related to other cases to bolster their prosecution – “during his depositions, Cosby confessed that, in the past, he had provided Quaaludes… to other women with whom he wanted to have sexual intercourse.”
At Cosby’s trial, the prosecution wanted to use testimony from 19 different women as “prior bad acts” witnesses, and the court allowed them to call five of those women as witnesses:
Ahead of the second trial, the Commonwealth filed a motion seeking to introduce the testimony of a number of additional women who offered to testify about Cosby’s prior acts of sexual abuse. Generally, the women averred that, in the 1980s, each had an encounter with Cosby that involved either alcohol, drugs, or both, that each became intoxicated or incapacitated after consuming those substances, and that Cosby engaged in some type of unwanted sexual contact with each of them while they were unable to resist. The dates of the conduct that formed the basis of these allegations ranged from 1982 to 1989, approximately fifteen to twenty-two years before the incident involving Constand.
Cosby would not have made incriminating statements at his civil depositions, and he could not have been forced to make any statements if there was the threat of criminal prosecution:
Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].”
Once the charges were withdrawn, removing the possibility of criminal prosecution, the incriminating statements were made, and the alleged victim received millions of dollars in her settlement, the law does not permit the prosecutor to go back on their word and prosecute him.
Does the Reversal of Cosby’s Conviction Apply to Other Alleged Victims?
Can Bill Cosby still be prosecuted?
The Pennsylvania Supreme Court has closed the door on any further prosecutions in this particular case by this particular prosecutor’s office.
If there is sufficient evidence, he can still be prosecuted for alleged crimes in other jurisdictions or against other alleged victims – promises made by the original prosecutor in this case only bind that prosecutor’s office and likely only applied to that case with that alleged victim.
As the prosecutor said, his intent was to provide “transactional immunity,” which would only apply to prosecutions arising from that specific case.
But should he be prosecuted? Will he be prosecuted? Cosby is 83 years old – 84 on July 12, 2021. He has served three years in prison at this point, and the lurid details of his alleged rapes or sexual assaults against at least 60 women are now public.
Even if, somehow, all 60 women are lying about him and his deposition testimony was not true, he won’t be remembered as the “pudding pop man” or the kind, loving father from the Cosby Show. More likely, he will be remembered as a serial rapist, a symbol of misogynistic rape culture in the entertainment industry, and a symbol of the unstoppable flood of the #metoo movement.
I think he could be prosecuted for alleged crimes against other women and for crimes allegedly committed in other jurisdictions and maybe he should be, but I won’t be surprised if he does not face any further prosecutions.
Criminal Defense Lawyers in Columbia and Myrtle Beach, SC
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