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Constitutional Law

Cosby Reversal Not a Vindication for Him

Online commentators and graduates of Twitter law school are screaming that the Pennsylvania Supreme Court’s overturning of the sexual assault conviction of Bill Cosby is a blow to the #MeToo movement and an insult to the women who came forward to testify and accuse him. While it certainly must be seen by those women as a harsh and a painful result, the dismissal had nothing to do with the facts or the accusers, but rather was caused by a prosecutorial decision made long before the criminal trial to help the women obtain civil judgments against Cosby. The decision, however, should be lauded as a strong stance on holding prosecutor’s accountable for their promises.

The Pennsylvania Supreme Court had no choice but to throw the case out based on these facts:

+ In 2005, Andrea Constand reported that in 2004 she had been drugged and sexually abused by Cosby at his home

+ Although Constand had tried to record Cosby several times in the year between the assault and her report to law enforcement, Cosby never said anything incriminating in the phone calls

+ Then-Montgomery County DA Bruce Castor, after doing a full review of the case, determined there was not enough to prove Cosby’s guilt beyond a reasonable doubt. Castor decided that a civil lawsuit against Cosby would be the only way forward for Ms. Constand. So Castor with the knowledge and consent of Cosby’s lawyers (but without having told Ms. Constand in advance), made a public statement that his office -acting as the sovereign and top law enforcement officer in the County – had decided to decline prosecution of Mr. Cosby. Castor stated that this decision meant the Cosby -in any civil deposition – could not invoke his right to not incriminate himself under the Fifth Amendment to the Constitution and must therefore answer all questions posed to him.

+ Constand had been pursuing a civil claim against Cosby and when Cosby was deposed, because of Castor’s statement, he could not refuse to answer any question. He testified in four separate depositions about his interaction with Ms. Constand and the other women that had since come forward to similarly accuse him. Had there been a criminal proceeding against him, he could have invoked the Fifth Amendment. In fact, when he tried to invoke the Fifth in response to certain questions, Constand’s civil attorneys obtained a judicial ruling that he could NOT invoke based on DA Castor’s press release.

+ Castor settled her civil case against Cosby for $3.3 Million and so in 2015, the civil records, which were previously closed to public scrutiny since it involved sexual crime allegations, were unsealed.

+ Then-DA Risa Ferman, reviewing the civil case records, re-opened the criminal case and indicted Cosby. Castor sent her an email saying that he felt this was improper since the Commonwealth and Cosby’s lawyers had an understanding that there would be no prosecution to allow Cosby to testify openly in the civil case, which had happened. Ferman replied that since there was no written agreement between the parties, she did not feel bound by the “understanding” and was going to proceed with the prosecution.

+ Cosby was convicted on Ms. Constand’s accusations, bolstered by the testimony of the other women Cosby was questioned about in the civil case.

The Pennsylvania Supreme Court

The Supreme Court held that notwithstanding that there was no written immunity agreement, DA Castor’s statement and later testimony in a habeas corpus proceeding established that the Commonwealth’s promise and intent was to never prosecute Cosby in exchange for his not being able to take the Fifth in Ms. Constand’s civil lawsuit. Since Cosby relied on that by testifying in the depositions, “the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.”

In the end, it was Cosby’s being forced to testify that forced the Court to rule in this fashion. And they are right. The criminal justice system cannot work fairly if prosecutors can pull the rug out from under the criminally accused after having made express promises to them. While it may have been wrong for DA Castor to do what he did, it was far worse for DA Ferman to try to renege on the clear understanding of the parties.

Castor has since moved on to representing Trump (embarrassingly so I might add) in his impeachment proceedings. Ferman moved on to become a judge in Pennsylvania. Ms. Constand will have to remain satisfied with having won her civil case and having proven Cosby guilty in a court of law before a jury. Also, at least Cosby served two years in prison. Ms. Constand’s testimony and those of the women who supported her and testified about Cosby’s assaults on them will forever be part of the historical record on Cosby. While he and his supporters may tout this as a “vindication” it is far from that. He was proven guilty beyond a reasonable doubt.

I think Castor made a critical error if the goal was to help Constand in her civil case. When a person takes the Fifth in a civil proceeding, they do not get the same benefit they do in a criminal case. That is, a civil jury is allowed to take the invocation of the Fifth as an admission. Also, if the person takes the Fifth to every question (as Cosby would have likely done so here) it is essentially treated as a default and the plaintiff would win on liability. To prevent that, Cosby’s lawyers would have had to try and stay or freeze the civil lawsuit pending the criminal case, but that is relief is usually not granted. So I think Castor did not take that into consideration here.

While I get and appreciate the anger and outrage at seeking Cosby walk out of prison, I applaud this decision. It makes clear that DAs must be held to their word. Especially when the criminally accused rely to their detriment on the words and promises of prosecutors. We cannot just demand prosecutor accountability for the innocent; even those who are guilty in the criminal justice system need to be able to hold DAs accountable and to require that they deal with the accused fairly and equitably.

The Pennsylvania Supreme Court stated that Cosby’s arrest was “an affront to fundamental fairness, particularly when it results in a criminal prosecution that was forgone for more than a decade.” It added that overturning the conviction, and barring any further prosecution, “is the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system.” I agree.

You can read the 79 page decision here: https://www.pacourts.us/assets/opinions/Supreme/out/J-100-2020mo%20-%20104821740139246918.pdf?cb=1

Follow me on twitter @oscarmichelen

Contact me at omichelen@cuomollc.com

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