The 83-year-old Cosby is suddenly a free man after the Pennsylvania Supreme Court, in a 4-to-3 decision, overturned his 2018 conviction and 10-year sentence on three counts of sexual assault stemming from a 2004 incident in which Temple University women’s basketball operations manager Andrea Constand accused Cosby of drugging her. Many other women alleged that Cosby had assaulted them in similar fashion.
They are understandably infuriated today. “I am outraged!” one accuser, Victoria Valentino, told ABC News. "My stomach is in knots.”
Countless Americans share the sentiment. The critical point, however, is that the Supreme Court’s decision says nothing about sexual assault laws and in no way weakens the legal tools that victims are now using to get the redress that the system has long denied them.
Even less does it vindicate Cosby or erase the fact that 12 jurors unanimously found him to have committed the sexual assaults beyond any reasonable doubt.
Rather, Justice David Wecht’s opinion for the Supreme Court turned on a violation of Cosby’s right not to incriminate himself. That’s being called a technicality, but it’s more than that — it’s a bedrock constitutional right. (Disclosure: Wecht is a family friend whom I’ve known from Pittsburgh for many years.)
Upholding that right even in the face of repulsive conduct is exactly what courts are supposed to do.
The issue came to the fore because in 2005 then-Montgomery County, Pa., District Attorney Bruce Castor declined to prosecute Cosby for Constand’s allegation. Castor concluded that he couldn’t prove the case unless Cosby confessed.
But in an effort to foster some measure of justice, Castor announced in a news release that his office would not prosecute Cosby, thereby clearing the way for civil lawsuits at which Cosby would be unable to invoke his Fifth Amendment right not to incriminate himself. No formal immunity agreement was prepared, but Castor later testified that he “absolutely” meant to remove “for all time” the possibility of prosecution to force Cosby to testify in civil litigation.
Cosby, in turn, relying on Castor’s assurances, went on to make inculpatory statements in depositions. In fact, he tried to assert his right not to testify at certain junctures.
The problem arose after Castor retired, when his successors decided to prosecute Cosby notwithstanding Castor’s assurances. Prosecutors used Cosby’s deposition testimony and evidence derived from it at the criminal trial.
The state’s position throughout the appellate proceedings was that Castor’s assurances were not sufficiently formal to be binding on subsequent DAs. But the Pennsylvania Supreme Court disagreed, holding that when a prosecutor makes an unconditional promise of non-prosecution, as Castor did, and the defendant relies on it, as Cosby did, due process requires that the promise be enforced.
And assuming the defendant’s reliance is reasonable, that principle has to be right, notwithstanding the terrible injustice it works on victims in Cosby’s case and the deflating result it provides for one of the first major prosecutions of the #MeToo era.
In fact, the prosecutors’ argument that the promise had not been adequately formalized really weighs in the opposite direction. Waivers of constitutional rights, especially ones as fundamental as the Fifth Amendment right not to incriminate oneself, need to be knowing and intelligent. That means it falls to prosecutors, whose special role in the system the Supreme Court emphasized, to remove the doubt about their promises and suffer the consequences if they don’t stitch it up adequately.
The bottom line is Castor’s promise wasn’t just a stray statement in a news release (which to be sure is not how immunity agreements are supposed to happen). It was a genuine trade-off for Cosby, offered by an authoritative representative of the commonwealth: Cosby eluded criminal charges, but he was forced to testify at civil trials and thus face a partial measure of justice.
It would engender chaos and unfairness if a prosecutor’s promise could then just be ignored by his successor.
All of this may be cold comfort to the victims and the many fighters for greater justice for victims of sexual assault. But like prosecutors and victims’ advocates, appellate courts, too, have a special role to play in the legal system, and they play it in the best traditions of our constitutional system when they apply the law equally to the most abhorrent defendant.
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Opinion | Cosby's freeing was correct as a matter of law. But it's in no way a vindication. - The Washington Post
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