When comedian Bill Cosby was imprisoned as a “sexually violent predator,” women’s rights activists and the corporate news media declared it a signal victory and turning point in the #MeToo movement’s fight against male sexual predators. But now, two years into Cosby’s three to ten year sentence, the Pennsylvania Supreme Court has overturned his conviction, ordered his release, and prohibited a retrial. Cosby is a free man closeted at his Cheltenham, Pennsylvania, home, which ironically is also the scene of the alleged aggravated indecent assault that led to his arrest, trial, conviction, and imprisonment. And the same voices that cheered his incarceration are now angrily denouncing his release as a setback for the #MeToo movement, an outrage against women, and yet another shameful example of when a legal technicality enabled a rich and famous man to evade justice.
So what happened? Why has Cosby been set free despite substantial evidence of his guilt?
For the answers to those questions, consider the following twisted fact pattern taken from the court record.
In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported to police that Bill Cosby had sexually assaulted her one year earlier at his Cheltenham residence.
Constand, a Canadian-born former professional basketball player, met Cosby in 2002 when she was employed as the director of basketball operations at Temple University. In that capacity, she came into contact with Cosby, who was heavily involved with the university. Over time, Cosby mentored her and they developed a personal relationship.
The first time Cosby invited her to his residence, he greeted her, escorted her to a room, and then left her alone to eat dinner and drink wine. Later, Cosby returned, sat next to her on a couch, and placed his hand on her thigh. Constand was not bothered by this physical contact and shortly afterwards left the residence.
Cosby later made similar sexual overtures, including one time when he tried — but failed — to unbutton her pants.
Despite all of this unwanted sexual contact, Constand still regarded Cosby as a mentor, remained grateful for his career advice and assistance, and did not feel physically threatened or intimidated.
Eventually, Constand decided to leave her job at Temple and return to Canada to work as a masseuse.
In January 2004, she went to Cosby’s residence to discuss her decision. When she arrived, she noticed that Cosby had placed a glass of water and a glass of wine on the kitchen table. While she sat at the table with Cosby and discussed her future, she initially chose not to drink the wine because she had not eaten and did not want to consume alcohol on an empty stomach. At Cosby’s insistence, however, Constand began to drink.
At one point, she went to use the restroom. When she returned, Cosby was standing next to the kitchen table with three blue pills in his hand. He offered them to her, telling her that they were her “friends” and that they would “help take the edge off.” After she swallowed the pills, Constand and Cosby resumed discussing her planned departure from Temple.
Constand says that she soon began experiencing double vision. Her mouth became dry and her speech slurred. Although she could not identify the cause of her sudden difficulties, she knew that something was wrong. Cosby tried to reassure her and told her to relax. When she tried to stand up, she needed his assistance to steady herself.
Cosby guided her to a sofa in another room so that she could lie down. Constand, who was weak and unable to walk, started to lose consciousness.
Moments later, she suddenly awakened and found Cosby sitting behind her on the sofa. She was unable to move or speak. Constand says that Cosby then began fondling her breasts and penetrating her vagina with his fingers. At some point, she says, she lost consciousness.
Constand says that when she awakened in the early morning hours on the couch, she discovered that her pants were unzipped and her bra was raised and out of place. Constand got up, adjusted her clothing, and prepared to leave. She found Cosby standing in a doorway, wearing a robe and slippers. He offered her a muffin and a cup of tea. She took a sip of the tea, broke off a piece of muffin, and left.
After this January 2004 incident, Constand and Cosby continued to talk over the telephone about Temple University athletics. In March 2004, she had dinner with Cosby at a Philadelphia restaurant. When Constand tried to discuss the events at his home, Cosby was evasive. Realizing that he was not going to answer her questions, she got up and left.
A few months later, Constand moved back to Canada. She repeatedly spoke with Cosby over the telephone, mostly about his upcoming Toronto performance. He invited her and her family to the show.
Constand kept the January 2004 incident to herself until one night in January 2005 she bolted awake crying and called her mother. After she told her mother that Cosby had sexually assaulted her, they decided to report the matter to the Canadian police, who referred the complaint to the Cheltenham Police Department in Montgomery County, Pennsylvania.
This was when District Attorney Castor began his investigation. Castor, his First Assistant Risa Ferman, and experienced detectives investigated Constand’s claim. In evaluating the potential prosecution, Castor anticipated difficulty with Constand’s credibility as a witness based in part on her one-year delay before complaining to authorities.
Castor also determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because, in his professional opinion, testimony from other potential claimants against Cosby was likely inadmissible under the rules of evidence. All of these factors and others led Castor to conclude that unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”
Castor declined prosecution, and there he could have left the matter. But he didn’t. Instead, he got creative.
Castor contemplated an alternative course of action that could “provide some measure of justice” for Constand. He decided that a civil lawsuit for money damages was her best option. To aid Constand in that pursuit, he “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.”
Without the threat of a criminal prosecution, Castor reasoned, Cosby would no longer be able to invoke his Fifth Amendment privilege against self-incrimination in a civil lawsuit for fear that his statements would be used against him by the Commonwealth of Pennsylvania.
Castor advised Cosby’s criminal defense counsel that he would make a public statement that Cosby would not be charged. He and Cosby’s lawyer agreed that this would mean that Cosby would be unable to assert his Fifth Amendment privilege against self-incrimination in a civil case for money damages that Constand had filed.
According to Castor, defense counsel then communicated this assessment to the lawyers representing Cosby in Constand’s civil suit.
Castor then issued a public statement that gave his reasons for declining to charge Cosby and included this paragraph:
Because a civil action with a much lower standard of proof is possible, the District Attorney renders no opinion concerning the credibility of any party involved so as not to contribute to the publicity and taint prospective jurors. The District Attorney does not intend to expound publicly on the details of his decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action.
Significantly, Castor’s public statement made no reference to an agreement with Cosby’s criminal or civil lawyers not to prosecute.
When Constand’s civil suit reached the discovery phase, Cosby faced a choice. Should he assert his Fifth Amendment privilege against self-incrimination, or should he answer questions that could tend to incriminate him? To Cosby and his lawyers, the issue came down to whether or not Castor had immunized him from prosecution.
And here we need to hit the pause button to discuss the law of immunity.
Historically in Pennsylvania, there have been two types of immunity. At common law, there was transactional immunity according to which the recipient could not be prosecuted. But half a century ago, the Pennsylvania Legislature enacted a statute providing for the much more limited “use” immunity by which the recipient can be stripped of his Fifth Amendment privilege and ordered by a court to testify. That compelled testimony may not be used against the immunized person in a criminal prosecution.
The statute provides that a prosecutor may request an immunity order from a judge and that judge shall issue such an order when, in the judgment of the prosecutor, the testimony of a witness may be necessary to the public interest, and the witness has taken the Fifth. In that case, the judge can order the witness to testify.
So it was plain to anyone who cared to read the statute what needed to be done to preclude the use of Cosby’s civil deposition testimony in a criminal setting. Unless a prosecutor — say, for example, Castor — applied to a court of competent jurisdiction for and obtained an order compelling Cosby to answer questions, his testimony in the civil case could be used against him in a criminal case.
This is not a little-known legal procedure. Nevertheless, neither the experienced district attorney Castor nor Cosby’s equally accomplished criminal and civil lawyers saw fit to follow the procedure outlined in the immunity statute. Instead, in apparent reliance on Castor’s publicly proclaimed decision not to prosecute, Cosby testified in a series of depositions in the civil case without invoking or even mentioning his Fifth Amendment privilege.
And what testimony he gave. With counsel at his side, Cosby testified that he had developed a romantic interest in Constand as soon as he met her but kept it a secret. He acknowledged that he always initiated his in-person meetings with Constand and her visits to his home. He also testified that he engaged in consensual sexual activity with Constand on three occasions, including the January 2004 incident.
Regarding that incident, he admitted giving Constand pills but said they were Benadryl, a harmless antihistamine. He testified that when Constand arrived at his house in a stressed condition, he gave her the Benadryl to help her relax. According to Cosby, she took the pills without asking what they were, and he did not tell her.
He testified that after Constand sat next to him on the couch, they began kissing and touching each other. According to Cosby, they lay together on the couch while he touched her breasts and inserted his fingers in her vagina. After telling her to try and get some sleep, he went upstairs and went to bed. Two hours later, he came back downstairs and found Constand awake. He escorted her to the kitchen, where they had a muffin and tea.
Cosby also testified that in the past he had provided Quaaludes (a sedative and hypnotic medication) to other women with whom he wanted to have sexual intercourse.
Cosby confirmed almost in its entirety Constand’s narrative save for the type of pills and the question of consent. In addition, he immeasurably damaged his position by disclosing that he was in the practice of giving Quaaludes to women in whom he had a sexual interest.
Following these damaging admissions, Constand was able to demand and receive a $3.38 million settlement in her civil suit.
Although the terms of the settlement and the records of the case were placed under seal, in 2015 the presiding judge — in response to a media request — unsealed the records, which included Cosby’s devastatingly self-incriminatory deposition testimony.
By then, Castor was no longer district attorney. His successor as district attorney was his former first assistant, Risa Ferman, who reopened the criminal investigation of Constand’s allegations upon release of the civil records.
At about the same time, Castor announced that he was seeking reelection as district attorney. His opponent in that race was prosecutor Kevin Steele.
By then, dozens of women had come forward to accuse Cosby of decades-old sexual misconduct, and Steele publicly criticized Castor’s handling of the Cosby case. It was then that Castor told the Philadelphia Inquirer that he was open to prosecuting Cosby himself.
“There is absolutely nothing wrong with the DA’s office reviewing the Cosby case based on new evidence,” said Castor. “I have said repeatedly and for months that if I ever get the opportunity where I get the power to review the investigation into Cosby, I would do so.”
Castor stated that he would like to review Cosby’s testimony in the civil suit to determine if he could use it to prosecute Cosby.
“I have been wrestling in my mind on ways to try to figure out how to use the new info about the deposition to create a favorable atmosphere for a prosecution,” he told the Inquirer.
Referring to his 2005 press release, he stated, “I put in there that if any evidence surfaced that was admissible then I would revisit the issue, and that evidently is what the DA is doing.”
Meanwhile, Castor emailed Ferman a copy of his 2005 press release and stated that “with the agreement of” Cosby’s defense lawyer, he had “intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” He then pointedly stated that “I never made an important decision without discussing it with you during your tenure as First Assistant.”
In a further stab at dissuading Ferman, Castor then added this warning:
I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression. I cannot believe any state judge would allow that deposition testimony into evidence, nor anything derived therefrom. In fact, that was the specific intent of all parties involved including the Commonwealth and the plaintiff’s lawyers. Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.
Replying by letter, Ferman asserted that, regardless of Castor’s public press release, this was the first that she had learned about a purported binding understanding between the Commonwealth and Cosby. She quite reasonably requested a copy of any written agreement not to prosecute Cosby.
Castor replied by email that the previously referenced press release “is the written determination that we would not prosecute Cosby. That was what the lawyers for [Constand] wanted and I agreed. The reason I agreed and the plaintiff’s lawyers wanted it in writing is so that Cosby could not take 5th Amendment to avoid being deposed or testifying. A sound strategy to employ. That meant to all involved … that what Cosby said in the civil litigation could not be used against him in a criminal prosecution for the event we had him under investigation for in early 2005. I signed the press release for precisely this reason, at the request of [Constand’s] counsel, and with the acquiescence of Cosby’s counsel, with full and complete intent to bind the Commonwealth that anything Cosby said in the civil case could not be used against him, thereby forcing him to be deposed and perhaps testify in a civil trial without him having the ability to ‘take the 5th.’”
In short, all the parties had not signed a written agreement. Moreover, Castor never asserted in his emails that his decision not to prosecute had prohibited the prosecution of Cosby. “Naturally,” he wrote, “if a prosecution could be made out without using what Cosby said [in deposition], I believe that a prosecution is not precluded.”
Kevin Steele was elected district attorney, and, almost ten years after Castor’s public decision not to prosecute, the Commonwealth charged Cosby with three counts of aggravated indecent assault stemming from the January 2004 incident at his residence.
In January 2016, his lawyers filed a petition for writ of habeas corpus based, in part, on the alleged non-prosecution agreement. Whether or not such an agreement actually existed was a hotly disputed issue that required the trial court to hear the testimony of the purported participants. In support of the petition, the defense put Castor on the stand.
Castor testified that when he declined prosecution in 2005, he hoped to compel Cosby to answer questions in civil discovery without the benefit of the Fifth Amendment. He then added that his decision would bar the pending charges against Cosby.
He also testified that the reference in his 2005 press release that he would “reconsider this decision [not to prosecute] should the need arise” did not pertain to his decision not to bring charges, but rather his decision not to speak further about the reasons for the decision.
“Mr. Cosby was not getting prosecuted at all — ever — as far as I was concerned,” he testified. He characterized the agreement as binding on Cosby and the Commonwealth even though he had made the decision alone and that Cosby and his lawyers had “never agreed to anything.”
After hearing testimony from Castor and others, the trial court found that “the only conclusion that was apparent” from the record “was that no agreement or promise not to prosecute ever existed, only the exercise of prosecutorial discretion.” The court denied the petition, finding that Castor had never, in fact, reached an agreement with Cosby or even promised him that the Commonwealth would not prosecute him for assaulting Constand. Instead, the court found that the interaction between Castor and Cosby to be an “incomplete and unauthorized contemplation of immunity.” The trial court correctly found no legal authority for the “proposition that a prosecutor may unilaterally confer transactional immunity through a declaration as the sovereign.”
Instead, the court noted that immunity can be conferred only upon strict compliance with Pennsylvania’s immunity statute. And, because Castor did not follow the statute by requesting an order of immunity from a court, any purported immunity offer by Castor was defective and invalid.
The trial court also held that none of Cosby’s lawyers “obtained Castor’s promise [not to prosecute] in writing or memorialized it in any way.” The court took this failure to demand written documentation as evidence that no promise not to prosecute was ever extended.
After a preliminary hearing in May 2016, all of Cosby’s charges were held for trial. At that point, his lawyers filed a “Motion to Suppress the Contents of his Deposition Testimony and Any Evidence Derived therefrom on the Basis that the District Attorney’s Promise not to Prosecute Him Induced Him to Waive his Fifth Amendment Right Against Self-Incrimination.”
Following a hearing on this motion, the trial court again concluded that Castor’s testimony was “equivocal” and found that no promise or agreement not to prosecute existed. Based on this, the court found “no [c]onstitutional barrier to the use of [Cosby’s] deposition testimony” at trial, and denied the suppression motion.
Two trials followed. The first ended in a mistrial, but in the second trial Cosby was convicted on all charges and sentenced to three to ten years in prison.
The prosecution introduced Cosby’s deposition testimony at both trials, including his admissions to using Quaaludes during sexual encounters with women.
Cosby appealed his conviction. Since the trial court had made credibility determinations based on the testimony of Castor and others that the judge had seen and heard in person, the appellate court, which had only the written transcript of that testimony, accepted the trial court’s credibility determinations and factual findings. Thus, the key issues to be decided when the case reached the Pennsylvania Supreme Court were whether or not it had been an error to allow the prosecution of Cosby and the use of his deposition testimony at trial.
In its analysis, the Supreme Court noted Castor’s failure to follow the procedure in the immunity statute requiring a prosecutor to apply to a judge for an order compelling the witness to testify. The court also referred to Castor’s testimony at the habeas hearing that he intended to provide Cosby with transactional immunity. Nevertheless, the Supreme Court held that the trial court’s finding that the interaction between Castor and Cosby was not a formal attempt to bestow immunity “is supported by the record.”
The Supreme Court held that it was bound by the trial court’s factual findings that Castor’s actions “amounted only to a unilateral exercise of prosecutorial discretion. This characterization is consistent with the former district attorney’s insistence at the habeas hearing that what occurred between him and Cosby was not an agreement, a contract, or any kind of quid pro quo exchange.”
And then, the court reversed course and dropped the bomb: “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.”
From there, the court proceeded to spell out why Cosby should not have been prosecuted. Instead of wading through all 79 pages of the court’s opinion, consider the following portions, which set forth the crux of its analysis:
In accordance with the advice of his attorneys, Cosby relied upon D.A. Castor’s public announcement that he would not be prosecuted. His reliance was reasonable, and it resulted in the deprivation of a fundamental constitutional right when he was compelled to furnished [sic] self-incriminating testimony. Cosby reasonably relied upon the Commonwealth’s decision for approximately ten years. When he announced his decision on behalf of the Commonwealth, District Attorney Castor knew that Cosby would be forced to testify based upon the Commonwealth’s assurances. Knowing that he induced Cosby’s reliance, and that his decision not to prosecute was designed to do just that, D.A. Castor made no attempt in 2005 or in any of the ten years that followed to remedy any misperception or to stop Cosby from openly and detrimentally relying upon that decision. In light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion comports with the principles of fundamental fairness to which all aspects of our criminal justice system must adhere.
The impact of the due process violation here is vast. The remedy must match the impact. Starting with D.A. Castor’s inducement, Cosby gave up a fundamental constitutional right, was compelled to participate in a civil case after losing that right, testified against his own interests, weakened his position there and ultimately settled the case for a large sum of money, was tried twice in criminal court, was convicted, and has served several years in prison. All of this started with D.A. Castor’s compulsion of Cosby’s reliance upon a public proclamation that Cosby would not be prosecuted.
It was not only the deposition testimony that harmed Cosby. As a practical matter, the moment that Cosby was charged criminally, he was harmed: all that he had forfeited earlier, and the consequences of that forfeiture in the civil case, were for naught. This was … an unconstitutional “coercive bait and switch.”
There is only one remedy that can completely restore Cosby to the status quo ante. He must be discharged, and any future prosecution on these particular charges must be barred. We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled.
And with that, the Cosby case has come to an end. His conviction has been overturned, further prosecution arising out of Constand’s allegations has been barred, and Cosby is reportedly conferring with his advisers at the scene of the alleged crime, planning his showbiz comeback.
The only question remaining is how long will it be before the entertainer formerly known as “America’s Dad” files suit against the public officials who ensnared him in what Pennsylvania’s highest court has deemed to be an illegal “coercive bait and switch.”
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and may be reached by email at email@example.com.
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