Bill Cosby Freed After Appellate Victory

Bill Cosby's criminal conviction for sexual assault justly met its demise in the PA Supreme Court yesterday, not on a technicality, but because the decision to charge and try him was a bait and switch that violated one of the most basic tenets on which our criminal justice system is founded: due process of law. The Court found the violation was so egregious that only a remedy of dismissal with no chance of retrial was appropriate. Cosby was freed from prison immediately.

The 79-page opinion is here. There is some really good language on the awesome (as in huge, not terrific) power of prosecutors and why, when prosecutors make a promise to a defendant that induces him to give up a constitutional right, that promise must be enforced.

There's also a word I rarely see, and the opinion uses it three separate times: Undergird. (It means brace or support (an underpinning) and apparently was first used in the 1500's). [More...]

[Courts are obligated to]hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights. 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.

In the Cosby case, the then DA issued a press release in 2005 saying that the case could not be proven beyond a reasonable doubt. The evidence against Cosby was insufficient and there were credibility issues with the accuser. The DA announced that he had decided it was better to forego a criminal prosecution so that the accuser could civilly sue Cosby. In a civil case, the burden of proof was not as strong. He reasoned that if there was no threat of criminal prosecution hanging over Cosby, Cosby would not be able to assert his 5th Amendment privilege against self-incrimination in the civil suit, and could be forced to testify at depositions. And so he announced to the public that with the approval of the accuser's lawyers, and Cosby's lawyers, there would be no criminal prosecution of Cosby for the incident involving Andrea Costrand, and he intended this decision to bind the Commonwealth of PA now and forever.

And that's exactly what happened. The accuser sued, Cosby testified at the depositions in that case, never attempted to invoke his 5th Amendment privilege because the DA had declared he wouldn't be prosecuted and his lawyers confirmed without a possibility of criminal prosecution, he had no grounds to invoke his 5th Amendment right. Constrand got a $3.4 million settlement.

So he gave up an important right based on the publicly made representation of the prosecutor, which is what the prosecutor wanted to happen so the accuser who didn't have a winning criminal hand, could walk away with money.

Cosby then sat for four depositions in the civil case, and then settled it by paymg Constand more than $3 million. The AP sued to have Cosby's depositions in the civil case unsealed. The Court unsealed them. This prompted the next DA, who had worked under the first DA and according to the first DA was fully involved in his decision-making, to reopen the criminal investigation.

After she left office the next DA decided not only to prosecute Cosby, but to use his deposition testimony in the civil suit against him in the criminal case. But Cosby only agreed to answer questions at the depositions because the first DA's public statement that Montgomery County would not charge Cosby eliminated his 5th Amendment privilege since he was no longer under threat of criminal prosceution.

From yesterday's opinion:

Due process is a universal concept, permeating all aspects of the criminal justice system. Like other state actors, prosecutors must act within the boundaries set by our foundational charters. Thus, we discern no cause or reason, let alone any compelling one, to waive the prosecution’s duty to comply with due process simply because the act at issue is an exercise of discretion, e.g., whether or not to charge a particular suspect with a crime.

Cosby was tried not just once, but twice, for the alleged Constand assault. At the first trial, at which Cosby's civil deposition was allowed into evidence and an additional accuser was allowed to testify as to her version of an unrelated incident more than 20 years earlier, and still, the jury hung.

Still, the new DA, who had been fully aware of the first DA's decision and his intent. which was to preclude prosecution of Cosby in Montgomery County for all time as to the matter involving that particular victim, and in the event some other case was brought against Cosby in that county, against using his civil deposition or evidence the prosecution learned from it, the new DA tried again.

This time, the court, over strenous objection, agreed to allow five accusers, not just one, testify even though their claims were barred by the statute of limitations, and despite the remoteness of time of their allegations, under Rule 404(b)which contains an exception to the rule against admitting evidence of uncharged crimes.

Shorter version: Bill Cosby was railroaded. That doesn't mean he did or did not do the things all these women belatedly came forward to accuse him of. It means that victim advocacy is but one part of the three legged stool prosecutors must try and balance. The other two are fairness and administration of justice. And that's why this precariously balanced stool came crashing down on the prosecution.

An entirely different situation arises when the decision not to prosecute is unconditional, is presented as absolute and final, or is announced in such a way that it induces the defendant to act in reliance thereupon. When a non-prosecution decision is conveyed in such a way, and when a defendant, having no indication to the contrary, detrimentally relies upon that decision, due process may warrant preclusion of the prosecution. Numerous state and federal courts have found that a defendant’s detrimental reliance upon the government’s assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement even of unconsummated agreements. The cases are legion.

There were some dissenters. But the majority opinion explains why their position doesn't carry the day:

The dissent would amalgamate and confine all “present exercise[s] of prosecutorial discretion” within a single, non-binding, unenforceable, and unreviewable category. Id. We decline to endorse this blanket approach, as such decisions merit, and indeed require, individualized evaluation. To rule otherwise would authorize, if not encourage, prosecutors to choose temporarily not to prosecute, obtain incriminating evidence from the suspect, and then reverse course with impunity. Due process necessarily requires that court officials, particularly prosecutors, be held to a higher standard. This is particularly so in circumstances where the prosecutor’s decision is crafted specifically to induce a defendant to forfeit a constitutional right, and where the defendant has relied upon that decision to his detriment. The dissent’s approach would turn a blind eye to the reality of such inducements. Due process does not.

The opinion then succinctly recounts what happened:

In January and February of 2005, then-D.A. Castor led an investigation into Constand’s allegations. When that investigation concluded, Mr. Castor decided that the case was saddled with deficiencies such that proving Cosby’s guilt beyond a reasonable doubt was unlikely, if not impossible. For those reasons, D.A. Castor decided not to prosecute Cosby. To announce his decision, the district attorney elected to issue a signed press release—an uncommon tactic in the typical case, but not necessarily so in cases of high public profile or interest. In that press statement, D.A. Castor explained the extent and nature of the investigation and the legal rules and principles that he considered. He then announced that he was declining to prosecute Cosby.

The decision was not conditioned in any way, shape, or form. D.A. Castor did not say that he would re-evaluate this decision at a future date, that the investigation would continue, or that his decision was subject to being overturned by any future district attorney. There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent.

As to the trial court's narrow and erroneous interpretation of the sentence in the press release that referred to reconsideration of "this decision" should "the need arise":

Because a civil action with a much lower standard for proof is possible, the District Attorney renders no opinion concerning the credibility of any party involved so as to not contribute to the publicity and taint potential 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. District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise. Much exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light. The District Attorney encourages the parties to resolve their dispute from this point forward with a minimum of rhetoric.

In context, he's obviously talking about his decision not to expound on the reasons for his decision not to prosecute, as opposed to the decision itself. He's warning the parties he may reconsider and "tell all" about his reasons for not prosecuting (which included unflattering matters as to both parties and their credibility) if the parties start sleazing on each other in the civil case.

I don't see how you can read that statement any other way. He doesn't say he will reconsider his whatever decision he's referring to "if new evidence arises", he says "if the need arises". There is no "need" to prosecute, there is only the exercise of prosecutorial discretion. His statement says repeatedly this case was throughly investigated and was unwinnable against Cosby.

D.A. Castor stated that he did not intend to discuss the details of his decision not to prosecute. In the very next sentence, D.A. Castor stated that he would reconsider “this decision” if the need arose. In context, “this decision” must naturally refer to the decision not to discuss the matter with the public. This is so because announcing that particular decision was the very purpose of the immediately preceding statement, and the subject sentence naturally modifies that prior statement. D.A. Castor already had stated earlier in the press release that he had decided not to prosecute Cosby. Thus, when D.A. Castor referred to “this decision” in the particular paragraph under examination, he was referring not to a decision addressed much earlier in the press release but rather to the decision that he had stated for the first time in the immediately preceding sentence. Even more compelling is the fact that the entirety of the paragraph relates to D.A. Castor’s concern about the potential effect that any public statements that he would make might have on jurors empaneled in a civil case. Nothing at all in that paragraph pertains to the decision not to prosecute Cosby. As noted, D.A. Castor already had addressed the non-prosecution decision. There is no support for the notion that D.A. Castor was referring to his decision not to prosecute Cosby in the middle of a paragraph directed exclusively to: (1) the potential impact that any public explication by D.A. Castor might have upon the fairness of a civil case; and (2) D.A. Castor’s derivative decision not to discuss the matter publicly in order to avoid that potential impact.

And on the importance of the Fifth Amendment:

The right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice. Malloy v. Hogan, 378 U.S. 1, 7 (1964). The privilege constitutes an essential restraint upon the power of the government, and stands as an indispensable rampart between that government and the governed. The Fifth Amendment’s self-incrimination clause “is not only a protection against conviction and prosecution but a safeguard of conscience and human dignity and freedom of expression as well.” Ullmann v. United States, 350 U.S. 422, 445 (1956) (Douglas, J., dissenting).

To ensure that these fundamental freedoms are “scrupulously observed,” we emphasized that “it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon,” id. at 1063-64 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)), and that “the Fifth Amendment is to be “broad[ly] constru[ed] in favor of the right which it was intended to secure.” Id. at 1064 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 (1892), Boyd, 116 U.S. at 635, and Quinn v. United States, 349 U.S. 155, 162 (1955)). We stressed that “[t]he value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.” Id. at 1064 (quoting Grunewald v. United States, 353 U.S. 391, 425 (1957) (Black, J., concurring).

The right against compulsory self-incrimination accompanies a person wherever he goes, no matter the legal proceeding in which he participates, unless and until “the potential exposure to criminal punishment no longer exists.”

As to Cosby:

[It] is indisputable that, in Constand’s civil case, Cosby was entitled to invoke the Fifth Amendment. No court could have forced Cosby to testify in a deposition or at a trial so long as the potential for criminal charges remained. Here, however, when called for deposition, Cosby no longer faced criminal charges. When compelled to testify, Cosby no longer had a right to invoke his right to remain silent. Cosby was forced to sit for four depositions. That he did not—and could not— choose to remain silent is apparent from the record.

When Cosby attempted to decline to answer certain questions about Constand, Constand’s attorneys obtained a ruling from the civil trial judge forcing Cosby to answer. Most significantly, Cosby, having maintained his innocence in all matters and having been advised by a number of attorneys, provided critical evidence of his recurring history of supplying women with central nervous system depressants before engaging in (allegedly unwanted) sexual activity with them—the very assertion that undergirded Constand’s criminal complaint.

But, that's not the end of the inquiry.

We are left with no doubt that Cosby relied to his detriment upon the district attorney’s decision not to prosecute him. The question then becomes whether that reliance was reasonable.

Yes, it was reasonable of Cosby to rely on the advice of his counsel to testify at the depositions.

The contours of the right to counsel do not vary based upon the characteristics of the individual seeking to invoke it. Our Constitutions safeguard fundamental rights equally for all. The right to counsel applies with equal force to the sophisticated and the unsophisticated alike. The most experienced defendant, the wealthiest suspect, and even the most-seasoned defense attorney are each entitled to rely upon the advice of their counsel. Notwithstanding Cosby’s wealth, age, number of attorneys, and media savvy, he, too, was entitled to rely upon the advice of his counsel. No level of sophistication can alter that fundamental constitutional guarantee.

And the decision of the subsequent DA was not reasonable:

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 due process and fundamental fairness to which all aspects of our criminal justice system must adhere.

Here's the smackdown:

[T]he principle of fundamental fairness, as embodied in our Constitutions, requires courts to examine whether the challenged “conduct offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental and that defines the community’s sense of fair play and decency.” Kratsas, 764 A.2d at 27. In our view, specific performance of D.A. Castor’s decision, in the form of barring Cosby’s prosecution for the incident involving Constand, is the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system.

... It bears repeating that D.A. Castor intended his charging decision to induce the waiver of Cosby’s fundamental constitutional right, which is why the prosecutor rendered his decision in a very public manner. Cosby reasonably relied to his detriment upon that decade-old decision when he declined to attempt to avail himself of his privilege against compulsory self-incrimination and when he provided Constand’s civil attorneys with inculpatory statements. Under these circumstances, neither our principles of justice, nor society’s expectations, nor our sense of fair play and decency, can tolerate anything short of compelling the Montgomery County District Attorney’s Office to stand by the decision of its former elected head.

Why not let him be retried a third time and exlclude his deposition testimony? Because of the extent of the damage Cosby suffered:

Though this appeal emanates from Cosby’s criminal convictions, we cannot ignore the true breadth of the due process violation. The deprivation includes the fact that D.A. Castor’s actions handicapped Cosby in the derivative civil suit. Nor can we ignore the fact that weakening Cosby’s position in that civil case was precisely why D.A. Castor proceeded as he did. Suppression of evidence in a third criminal trial can never restore Cosby to the position he held before he forfeited his Fifth Amendment rights. The consequences of D.A. Castor’s actions include the civil matter, and no exclusion of deposition testimony can restore Cosby’s injuries in that regard.

The subsequent DA subjected Cosby to an unconstitutinal "bait and switch".

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, as the CDO itself characterizes it, an unconstitutional “coercive bait-and-switch.”

...The impact of the due process violation here is vast. The remedy must match that 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. The CDO’s remedy for all of this would include subjecting Cosby to a third criminal trial. That is no remedy at all. Rather, it is an approach that would place Cosby nowhere near where he was before the due process violation took root.

Actually, I think the damage to Cosby began with his successor's decision to try and do a run-around his decision, made on behalf of the Commonwealth, even after he twice cautioned his first successor that he intended his decision to bind and it did bind the Commonwealth, then, now and in the future, and it certainly meant Cosby's deposition testimony could not be used against him in a criminal case in that county.

And so the Court finds:

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.

But the best is saved for the paragraph before the conclusion:

It cannot be gainsaid that 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. Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons.

The bottom line:

When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity.

Based on this opinion, I think a recall petition for the DA who re-opened the investigation into Cosby-Constand and the DA who made the decision to charge and arrest Cosby and try him not once, but twice, would be entirely appropriate.

Aging and near-blind Bill Cosby spent three years in prison because prosecutors ran amok. Rich or poor, that's not fair. That a poor person would not have had the means to fight the system like Cosby did is just another reason why we need to ensure that every defendant, including the indigent, have access to competent counsel.

Last word on Cosby's fate goes to the Court (It's the last sentence of the opinion):

A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain. For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.

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  • Display: Sort:
    Thanks, Jeralyn, for explaining all that (5.00 / 3) (#1)
    by desertswine on Thu Jul 01, 2021 at 05:44:17 PM EST
    in a way that I actually understood!

    thank you for letting me know (5.00 / 2) (#2)
    by Jeralyn on Thu Jul 01, 2021 at 08:23:15 PM EST
    it was helpful. It took me hours to read that opinion and extract the info that was significant to me as a lawyer. I thought it was important because so many cases involve what a defendant views as "broken" promises and a court has to decide if his view is reasonable and if he relied on the promise to his detriment. Usually it happens with guilty pleas and in the context of plea agreements, but Cosby's case shows it reaches much further and while the court can't tell the prosecutor what to charge or not to charge, it can order specific performance.

    I want DAs, prosecutors and judges (5.00 / 1) (#3)
    by McBain on Fri Jul 02, 2021 at 03:16:49 PM EST
    to play by the rules.  Hopefully, this ruling will be a step in the right direction.

    Great write up!

    SITE VIOLATOR (none / 0) (#5)
    by Peter G on Tue Jul 13, 2021 at 06:18:45 PM EST
    and having trouble staying on the subject