Cosby Reversed, Acquitted and Revealed

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.

28 thoughts on “Cosby Reversed, Acquitted and Revealed

  1. Elpey P.

    People would have an easier time cheering this outcome and writing laudatory think pieces for NPR and NYT if it were a less heinous charge, like say murder.

  2. Hunting Guy

    Bill Cosby.

    “ The only thing that you can get into without a lot of trouble is a lot of trouble.”

  3. Omar

    Bruce Castor testified in a habeas corpus hearing in February 2016 that he was referring to the decision to speak publicly, not the non-prosecution decision. He said because there were aspects of this case that may have made both parties look bad. Of course Bill Cosby, bring a celebrity, wouldn’t want his behavior exposed, but neither would Andrea Constand, who was intending on filing a civil suit (and likely expecting a settlement).

      1. Omar

        A little. I was just clarifying that the fact that the court appeared to be taking Castor’s testimony at face value rather than interpreting what his press release meant in Cosby’s favor. If you were saying this and I misunderstood, I do apologize. I do agree with everything you said, though. Your other articles on this topic seem to be spot on.

  4. Bob G

    I haven’t gone through all of the accounts of all of Cosby’s “victims,” but the ones I did read seemed to be the rough equivalent of “He gave me this drink. I didn’t ask him what it was but it smelled funny and it burned my throat when I drank it. After I had a few of Cosby’s drinks I felt dizzy and uninhibited and I let him have sex with me. I didn’t realize it at the time, but now I know I was raped! And then there were these funny smelling cigarettes he had…” It’s amazing how in a few decades people have forgotten that quaaludes were one of the most popular recreational drugs in the country. But I guess these days we’re supposed to assume that women are children.

  5. Mike V.

    I’m reminded of this passage in A Man For All Seasons
    “William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

    Once the DA makes a deal, a latter DA can’t undo it or the law means nothing. Even a bad man or even the Devil himself the benefit of law.

  6. DaveL

    I see a lot of people blaming Castor for messing up the case with his agreement not to prosecute. But it seems to me that, given the weakness of the criminal case, granting immunity in order to compel his testimony in a civil trial was the best shot at Justice that his accusers were going to get. It was a reasonable call. It was his successors who mucked the case up by reneging on the deal.

  7. B. McLeod

    Media pundits spent the morning coverage on hammering that the court did not say he isn’t guilty.


    This was a political show trial, launched by an unethical prosecutor and managed by a judge either too biased or too fearful to make sound rulings. Cosby is still out millions of dollars and two years of his life. He can’t afford many more victories of this sort.

    1. SHG Post author

      The irony is that they did say he was innocent by reversing and acquitting him, thus restoring him the status of an innocent person. But nobody wants to hear that.

      1. David

        So the channels/streamers that waited until he was convicted to remove “The Cosby Show” will now make it available again, right?

  8. Jardinero1

    “You wanna tell me his 60 alleged victims got due process?” This raises another non-trivial point; victims do not get due process, only the accused should . The case is between the state or people, not the victims; and the accused. Victims get recompense in the civil courts, if they can afford it.

      1. Alex S.

        You’re not slapping the non-lawyers around as much as you used to. So sometimes they feel the need to explain due process to us.

        1. SHG Post author

          Kindergarten-level comments really aren’t as interesting to me (or any other lawyer) as they are to you. I may have to start doing some serious trashing of comments again to get raise the intelligence level to fifth grade.

      2. Lee Keller King

        “That needed ‘splainin’?”

        Not to this group, but apparently to a large portion of the population. 🙁

  9. Shane

    Despite endless hedging like “Cosby is a rapist who should rot forever, but he deserves to be free,” I saw progress yesterday. A lot of people failed, maybe even most people, but less failed than the last time we had this test and more came out in support of the Court’s ruling than I would have expected.

    Maybe it’s the tide turning against prosecutors or the Court’s reasoning being pretty clear to non-lawyers (everyone understands broken promises). I won’t bet on it, but I’m slightly more optimistic for the next time this topic comes up.

  10. Jo

    I guess you missed the centuries (including present day) when women who reported rape were presumed to be lying?

    1. SHG Post author

      Putting aside your absurdly simplistic assertion, it has no relevance to any particular prosecution.

  11. Miles

    I’m personally shocked and offended someone didn’t say something this idiotic far earlier in the comments. Slackers.

    1. SHG Post author

      On the bright side, it presents a stark contrast between actual thought and those who regurgitate empty mantras.

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