Debunking Cosby

I’ve heard enough spin on the Pennsylvania Supreme Court’s reversal of the Cosby conviction today to justify an article that spells out what really happened. The case was hotly contested by both sides. But there is no way that a jury was going to ignore a parade of women saying that they were sexually assaulted. So from the beginning I said that this case was about two issues. First, could the prosecution take place, given that Former District Attorney Bruce Castor had promised not to prosecute Cosby for offenses involving Andrea Constand. Second, can the prosecution present evidence of prior bad acts allegedly committed against other women, in the prosecution for a sexual assault against Ms. Constand. Today, the PA Supreme Court addressed the first question and then refused to address the second (as mooted by the first).

It is well settled that a plea agreement between a prosecutor and defense attorney is enforceable in Pennsylvania (with some exceptions). However, the Trial Court had found that Cosby’s lawyers did not have an agreement. Despite that fact, the Supreme Court held that District Attorney Castor issued a press release wherein he stated that Cosby would not be prosecuted for crimes against Ms. Constand because the case was not winnable (remember this occurred before all of the alleged victims were known). As a result, Cosby was stripped of his Fifth Amendment rights not to incriminate himself for those crimes. This permitted Ms. Constand’s lawyers to call Mr. Cosby to a deposition and question him about his activities with Ms. Constand. This made sense because when they objected (and they did) the Court likely would have pointed to Mr. Castor’s statements that Cosby would not be prosecuted, demonstrating that he needed no Fifth Amendment right because there was nothing he could be prosecuted for in connection with Constand. Inexplicably, they also permitted him to answer questions about other women. I can’t imagine why, as I’m not aware of any promises not to prosecute him for crimes against other women. He did have a Fifth Amendment right with regard to crimes involving those other women? Why didn’t he assert it? The record is devoid of answers.

The Pennsylvania Supreme Court held that where a prosecutor issues a press release stating that he will not prosecute a defendant for a certain crime, and that defendant then justifiably relies on that statement and sits for a deposition about that crime, the defendant may not thereafter be prosecuted for that crime. That did not automatically entitle Cosby to discharge of the entire case – he could have been retried. But then the Court determined that under the very specific facts of this case, where Mr. Cosby settled with Ms. Constand for $3.4 million, was convicted, and went to jail, the only way to get him back to the position he should have been in, in this case, was to bar retrial and discharge the case permanently. And that’s exactly what they did.

Many have asked what happens next? Are there other victims in other jurisdictions where there has not been a promise not to prosecute and the statutes of limitations have not yet run? Might they prosecute? I think the answer is that could happen. Conversely, Mr. Cosby has paid a settlement, sat through two criminal trials, and spent considerable time in jail. A prosecutor might decide that’s enough. A second question is can the prosecutor appeal? Practically, no. This case was very narrowly decided. The United States Supreme Court can only take a very limited number of cases so they try to pick them wisely. How likely is it that another defendant, without an agreement between his lawyer and the prosecutor, sees a press release from a prosecutor unilaterally stating that he will not prosecute that person? And then the person sits for a deposition, in justifiable reliance upon that statement, and gives up his Fifth Amendment right not to testify? These facts probably don’t occur once in ten years. So there is no way the US Supreme Court is going to waste their time deciding these issues.

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