If you start from a place of guilt, that the once-beloved Bill Cosby was a serial rapist, as an indisputable fact, it makes the decision of the Pennsylvania Supreme Court hard to swallow. There are the usual cries of ludicrous conspiracy-type excuses, that it was money, the fix was in, the patriarchy. But the challenge is understanding two things. First, the case was extremely weak on the facts alone, which was why it wasn’t brought until after the paradigm shift of #MeToo substantially altered people’s belief system about sexual assault so that a prosecution that never would have survived twenty years ago was viable then.
The second was that even so, the prosecution still needed to play fast and loose with the law to get a conviction. Between the five propensity witnesses and the allowance of an unqualified “expert” Rape ‘Splainer. the trial was so front-loaded against the defendant, to the applause and appreciation of the choir that couldn’t care less about anything other than conviction because this was a sex crime, and men must always be convicted when accused of a sex crime, no matter what.
But if you start from a place where Cosby should never have been charged or tried, no less convicted, not only does this make more sense, but it does so without giving rise to the motivated outrage that some cosmic injustice was done. It wasn’t.
The majority resolved the case on the overarching issue of former district attorney Bruce Castor’s use of a press release to remove the constraint of Cosby’s assertion of his Fifth Amendment privilege against self-incrimination so that Constand could pursue a civil action against him. That it was done by press release muddied the waters, and if Cosby had better counsel, they would have insisted on an agreement in conformity with the statute conferring transactional immunity. They didn’t, relying upon Castor’s announcement that there would be no prosecution. The Court held that Castor had the authority to make that call, and even though it was ugly, Cosby was reasonable in relying on it. And to his detriment, he did, testifying four times in depositions upon the promise that he would not be prosecuted.
Prosecutors can be bound by their assurances or decisions under principles of contract law or by application of the fundamental fairness considerations that inform and undergird the due process of law. The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees.
Castor testified as to what his press release meant, what its purpose was, and despite a squishy line toward the end, that it did not relate to the finality of his announced decision not to prosecute.* And both Castor and the putative victim, Andrea Constand, got what they wanted from it, Cosby’s testimony. Notably, while it was inculpatory in the sense that he admitted to aspects of the allegations against him, it was not a confession. Cosby asserted that all sexual conduct was consensual. The court held that this was not only what a reasonable person would have understood Castor’s commitment not to prosecute meant, but to “reimagine” the promise after the fact was untenable.
To hold otherwise would recast our understanding of reasonableness into something unrecognizable and unsustainable under our law. If Cosby’s reliance was unreasonable, as found by the lower courts and as suggested by the Commonwealth, then reasonableness would require a defendant in a similar position to disbelieve an elected district attorney’s public statement and to discount the experience and wisdom of his own counsel. This notion of reasonableness would be manifestly unjust in this context. Defendants, judges, and the public would be forced to assume fraud or deceit by the prosecutor. The attorney-client relationship would be predicated upon mistrust, and the defendant would be forced to navigate the criminal justice process on his own, despite the substantial deficit in the critical knowledge that is necessary in order to do so, as so compellingly explained by Justice Black.
And if there was an enforceable promise not to prosecute made by the then-district attorney and relied upon by Cosby, enforcement of that promise required reversal and acquittal. To allow the prosecution to retry the case, but without the inculpatory statements, would have allowed the prosecutor’s commitment to be unfulfilled. Cosby never should have been tried and with this decision, it’s as if the trial and conviction never happened, except for the years of his life lost to prison. And as the conviction was reversed based on detrimental reliance on Castor’s promise, the court didn’t reach the other arguments.
Had this been another crime than an old sexual assault case, would there have been any controversy about the reversal? Even those trying their best to be principled about the fact that Bill Cosby deserves due process just like anyone else struggle to get past what a heinous guy Cosby is.
As horrific as Mr. Cosby’s actions were, protecting due process rights matters regardless of the crime. As the court stated, “society holds a strong interest in the prosecution of crimes. It is also true that no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” In our criminal justice system, even righteous ends cannot justify unconstitutional means.
The fight here, and it’s a good fight, is to nudge those fair weather friends of constitutional rights to remember that either they’re given to those we despise or they mean nothing. Most will, and did, spew whatever excuse that had to reject the application of due process to Cosby for the usual #MeToo rationalizations.
You wanna tell me his 60 alleged victims got due process?
The reversal of Cosby’s conviction was bold only in the sense that it could not have been lost on the court that it would evoke this sort of reaction. On the law, it was entirely expected and the only shocking aspect of the case was that it wasn’t trashed by the trial court, who was also well aware of the #MeToo climate in making rulings that enabled a conviction that would never have been attained otherwise.
But he’s guilty, you say? But what he did was horrific? But even if we support due process and constitutional rights, that doesn’t make Cosby any less of a monster? There was a reason Castor chose not to prosecute Cosby in 2005, because the evidence was exceptionally weak and no rational jury could have found he committed sex crimes beyond a reasonable doubt.
The only things that changed between then and now are people’s presumption that a person accused of a sex crime is guilty. This reveals nothing about Cosby but a lot about us.
*The part of the press release giving rise to a claim of uncertainty as to the promises made can be found here:
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. District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise. (Italics added.)
It was argued that “reconsideration” could apply to the decision not to prosecute, but the court held that it applied to the preceding sentence about expounding publicly.