Jurisprudence

Unfortunately, the Decision Overturning Bill Cosby’s Conviction Makes Sense

Don’t blame the Pennsylvania Supreme Court. Blame prosecutor-turned–Trump lawyer Bruce Castor.

Bill Cosby smiles as he steps out of an elevator at the courthouse wearing a suit.
Bill Cosby arrives at the Montgomery County Courthouse in Norristown, Pennsylvania, on the second day of sentencing in his sexual assault trial on Sept. 25, 2018. Mark Makela/Getty Images

The Pennsylvania Supreme Court overturned Bill Cosby’s 2018 sexual assault conviction on Wednesday in a 6–1 decision. By a 4–3 vote, the court also prohibited the future prosecution of Cosby for his crime, forestalling the possibility of a new trial. Because Cosby is, beyond doubt, a sexual predator, Wednesday’s ruling may feel unjust. But the fault here does not lie with the Pennsylvania Supreme Court. It lies, rather, with Bruce Castor, the Republican former district attorney who promised not to prosecute Cosby in 2005. Castor’s dubious deal—which two justices implied to be corrupt—formed the basis of the court’s conclusion that prosecutors violated Cosby’s due process rights. The decision is a dispiriting reminder of the damage that prosecutors can inflict when they wield their power as recklessly as Castor did 16 years ago.

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The story behind Wednesday’s decision reaches back to 2002, when Cosby befriended a woman named Andrea Constand through their mutual connections at Temple University. Cosby became a mentor to Constand, and in 2004, she visited him at his home. He offered her three blue pills, which he called her “friends”; hesitantly, she took them. She then began to feel dizzy and realized she could not move or speak. Before losing consciousness, she saw Cosby fondle her breasts, penetrate her vagina with his fingers, and use her hand to masturbate himself. Later, when she came to, her pants were unzipped and her bra was out of place.

In 2005, Constand reported her assault to the police. The case fell under Castor’s purview, since he was then serving as district attorney of Montgomery County, where Cosby’s home was located. Following a brief investigation, Castor decided that he could not win a criminal prosecution against Cosby, claiming he believed Constand would not be a credible witness. Instead, Castor told Constand that he had hatched a plan to facilitate a civil suit against Cosby. He put out a press release announcing that, as “the representative of the sovereign” (that is, Pennsylvania), he had decided never to prosecute Cosby for this alleged crime. By doing so, Castor said he had stripped Cosby of his Fifth Amendment right against self-incrimination: Since Cosby couldn’t be prosecuted for his sexual assault, he could no longer refuse to testify about it. Constand then filed a civil suit. At deposition, Cosby admitted that, in the past, he had given quaaludes to women he wanted to have sex with. The parties eventually settled the case for $3.38 million.

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Fast forward to 2015. Risa Vetri Ferman, who replaced Castor as Montgomery County district attorney, decided to reopen the Constand case. Her own successor as district attorney, Kevin Steele, later charged Cosby with sexual assault. For obvious reasons, Cosby declined to testify at trial. But prosecutors sought to introduce his earlier deposition—in which he admitted to giving quaaludes to women—and the court allowed it. The first trial ended with a hung jury, a setback for Steele. In a second trial, though, the jury found Cosby guilty on all three counts of aggravated indecent assault. Although we can’t know for sure, it seems likely that his prior admission to drugging women played a role in the jury’s verdict.

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Cosby appealed, alleging that the introduction of his incriminating deposition violated the due process clauses of the Pennsylvania and U.S. constitutions. On Wednesday, the Pennsylvania Supreme Court agreed. “When a prosecutor makes an unconditional promise of non-prosecution,” Justice David Wecht wrote for the majority, “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.”

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As Wecht explained, courts must “hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Because Cosby reasonably “relied upon D.A. Castor’s public announcement that he would not be prosecuted,” and his reliance “resulted in the deprivation of a fundamental constitutional right when he was compelled to furnished self-incriminating testimony,” his prosecution and conviction violate due process.

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On this, six of seven justices agreed. But on the remedy, they splintered. Two justices argued that prosecutors can now retry Cosby and simply exclude the incriminating testimony he provided in reliance on Castor’s promise. But a four-justice majority, led by Wecht, disagreed. The majority instead forbade Pennsylvania prosecutors from trying Cosby for this crime ever again. It found that he had been subjected to a “coercive bait-and-switch” and must receive a remedy that restores him to status quo “before the due process violation took root.” In other words, Cosby must be freed from the fear of prosecution altogether.

This remedy is strong medicine, but the alternative could create perverse incentives. For instance: A district attorney could promise not to charge a suspect, then leverage that promise to make them confess to their crime. Then the district attorney’s successor could then bring charges anyway. Even if the confession were suppressed at trial, prosecutors could use it as a road map to gather evidence they might never have found otherwise. With a simple “bait-and-switch,” prosecutors could force suspects to surrender their Fifth Amendment right against self-incrimination in exchange for an empty promise.

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Only one justice, Thomas Saylor, dissented from Wednesday’s decision. Saylor argued that Cosby did not actually rely on Castor’s promise when he chose to testify in Constand’s civil case. He also asserted that, either way, such reliance would’ve been “unreasonable, if not reckless.” But Cosby’s lawyers said that they would not have let their client testify if they believed prosecutors could charge him in the future—which strongly suggests that he did, in fact, rely on Castor’s promise. Whether that reliance was reasonable is debatable. In holding that it was, the Pennsylvania Supreme Court erred on the side of protecting defendants who lack the wisdom to see through a transparently undependable prosecutorial pledge.

Notably, Saylor also wrote that he was inclined to grant Cosby a new trial on different grounds. Prosecutors brought in five of Cosby’s alleged victims to testify about their abuse at trial; the court allowed their testimony to illustrate a similar “scheme” across victims, since their stories bore many similarities. Saylor wrote that he found this evidence “unduly prejudicial” toward Cosby, and strong grounds for a new trial. So the bottom-line decision to overturn his conviction was essentially unanimous.

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Shortly after Wednesday’s decision came down, Cosby was released from prison. He had served three years of a three- to 10-year sentence. It may be difficult to see justice in a sexual predator walking free. Certainly, his victims deserve better than what happened here. But the Pennsylvania Supreme Court’s decision rests on the outrageous behavior of Castor (who recently defended Donald Trump at his second impeachment trial). “The circumstances before us here,” the majority noted, “are rare, if not entirely unique.” But there is nothing unique about corrupt prosecutors bending the rules to help high-profile suspects avoid prison. And we can only hope that the Pennsylvania Supreme Court enforces due process in cases involving typical defendants as rigorously as it did for Bill Cosby.

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