John Wilson, a former Judge and prosecutor, reviews the controversial Cosby decision.
In April of 2018, then-80 year old actor and comedian Bill Cosby was found guilty of three counts of Aggravated Indecent Assault by a Pennsylvania Jury. The allegations involved “a former employee with Temple University women’s basketball team….(who) testified that Cosby, a powerful trustee at Temple, drugged her and sexually assaulted her when she visited his home to ask for career advice” in 2004, 14 years earlier.
At the time of Cosby’s conviction, CNN noted that this “was the first celebrity sexual assault trial since the #MeToo movement began last fall, and many saw it as a test of whether the cultural shift the movement has brought about would translate in court…’What was revealed through this investigation was a man who had spent decades preying on women that he drugged and sexually assaulted, and a man who evaded this moment right here far too long,’ Montgomery County District Attorney Kevin Steele told reporters. ‘He used his celebrity, he used his wealth, he used his network of supporters to help him conceal his crimes.’”
While DA Steele’s comments may be the absolute truth, he neglected to mention one disturbing fact – Steele’s predecessor, Bruce Castor, had issued a press release in which he publicly declined to prosecute Cosby for these same allegations. In fact, according to the ABA Journal, “Castor…said there was insufficient evidence to charge Cosby after he learned of the incident in 2005…(he) noted that (the witness) continued to talk with Cosby on the phone and to meet him in person after the incident, which could harm her credibility. He also reasoned that recordings (she) made in an attempt to get Cosby to make incriminating statements could be interpreted as an attempt to get money…Castor…decline(d) to prosecute. He told Cosby’s attorney that he thought his decision meant that Cosby could not assert the Fifth Amendment in a subsequent civil suit” brought by the witness, and subsequently settled for more than three million dollars.
After being sentenced to a maximum term of ten years in prison, Cosby’s lawyers appealed his conviction, asserting that the defendant had the right to rely upon former DA Castor’s promises. Last month, the Pennsylvania Supreme Court agreed.
“’This is justice’…Cosby’s rep, Andrew Wyatt, said in a statement…’This is the justice Mr. Cosby has been fighting for.” But not everyone thought the reversal of Cosby’s conviction was the right result.
As reported by The Guardian, “the reversal prompted several expressions of grief after a hard-won victory for #MeToo supporters. ‘Heartbreaking for all survivors. #MeToo lasts forever,’ tweeted Ellen Barkin…’To every woman who was sexual assaulted [sic] by #BillCosby my heart hurts for you today and I am full fury. It’s horrifying,’ tweeted Debra Messing…’On today’s episode of ‘How the Justice System Fails Victims’: Bill Cosby released on a technicality,’ tweeted the former California congresswoman Katie Hill.”
Many of you reading this article may agree with Ellen Barkin and DA Steele – Cosby was a predator, using his fame and wealth to avoid prosecution for his crimes. But a review of the basis for the reversal of his conviction reveals a more fundamental issue – the right of the accused -any accused, no matter who they might be – to due process and fundamental fairness.
In their opinion, the Pennsylvania Supreme Court took great pains to explain the deal granted to Cosby by DA Castor. “Mr. Castor testified that he signed the press release…in order to bind the Commonwealth so it ‘would be evidence that they could show to a civil judge that Cosby is not getting prosecuted…I operated under the certainty that a civil suit was coming and set up the dominoes to fall in such a way that Mr. Cosby would be required to testify…I concluded that the best way to achieve justice was to create an atmosphere where [the witness] would have the best chance of prevailing in a civil suit against Cosby… , I intentionally and specifically bound the (DA’s office) 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…”
As DA Castor anticipated, Cosby was deposed, and during his sworn testimony, he admitted to many of the allegations made by the witness against him.
DA Castor made his decision in 2005. Cosby was charged by Castor’s successor, DA Steele, approximately 10 years later, after the civil case was settled. What changed?
“The #MeToo phrase was first coined in 2006 by Tarana Burke, an advocate for women in New York. Burke wanted a way to empower women who had endured sexual violence by letting them know that they were not alone—that other women had suffered the same experience they had…(t)hen, in 2017, the phrase was reintroduced by actress Alyssa Milano as a way to encourage women and men to share their stories as part of an anti-sexual harassment movement…Milano had no idea how quickly one small idea would catch on, prompting the phrase to be used more than 12 million times over the next few weeks…For people who worked with survivors of sexual assault and harassment on a daily basis, the response was beyond what they could comprehend. Finally, the issue they had been working tirelessly to address was gaining some traction and garnering national attention.”
The MeToo movement had some powerful targets, including movie producer Harvey Weinstein and NBC News anchor Matt Lauer. But as discussed in the California Law Review, “Modern polls show there is significant concern regarding the potential downsides of the #MeToo movement and skepticism regarding the movement’s benefits… the legal profession is not immune to these same avoidance behaviors. Young female associates are reporting that ‘men don’t want to take women on the road with them, go out to dinner or have one-on-one meetings with the door closed because they are fearful their actions can be misconstrued.’”
In this environment, DA Steele learns that his predecessor gave a non-prosecution deal to a rich and powerful celebrity, who has subsequently admitted, under oath, that he committed the acts for which he was accused. What is an elected official to do?
They got out mouthsofthesouth.com buy levitra online of the house alive, but they have nowhere to live, nothing to eat, and no clothing to survive the winter weather. Chronic disease requires a more complete picture of the condition- Knowing the definition of male erectile failure It ispermanent inability to keep or sustain healthy erections for pleasing sexual intimacy. levitra on line A whiplash can be induced to anyone who has been hit with a massive amount overnight delivery cialis of force. Different kinds of medicines have been implemented and the issue persists. no prescription viagraHe ignores the integrity of his office, and goes back on the deal DA Castor struck. All to appease the #MeToo mob.
According to the Pennsylvania Supreme Court, however, DA Steele was duty bound to stand by the decision of his predecessor. “(W)hen a prosecutor makes an unconditional promise of non-prosecution,” the Court wrote in its opinion, ” 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.” Citing to cases involving defendants who entered into guilty pleas under promises made by prosecutors, “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….(t)he law is clear that…prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees.”
In Cosby’s case, “the due process implications arise because Cosby detrimentally relied upon (DA Castor’s) decision, which was (Castor’s) ultimate intent in issuing the press release. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby’s reliance. Indeed, the most patent and obvious evidence of Cosby’s reliance was his counseled decision to testify in four depositions in (the) civil case without ever invoking his Fifth Amendment rights.”
In other words, because Cosby acted against his own interests in reliance on the promise made to him by DA Castor, DA Steele could not go back on DA Castor’s promise.
Does this seem like the invocation of a “technicality”, as the Court’s decision is described by former California congresswoman Katie Hill? Far from it. As the Pennsylvania Supreme Court explains, “(t)he right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice…(t)he 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.’” (case citations omitted)
The Court continued; “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 did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that ‘the potential exposure to criminal punishment no longer exist[ed].’”
Thus, “Cosby reasonably relied upon the Commonwealth’s decision for approximately ten years. When he announced his declination decision…District Attorney Castor knew that Cosby would be forced to testify based upon (Castor’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 due process and fundamental fairness to which all aspects of our criminal justice system must adhere.”
Still uncomfortable? Still believe that a guilty man “got away” with sexual assault?
Then you do not understand our system of justice.
In the famous words of Benjamin Franklin, from a letter written in 1785, “it is better 100 guilty Persons should escape than that one innocent Person should suffer.” This is an ancient principle of our common law, going back to Voltaire (who in 1749 said, “’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent”) and Blackstone (who wrote in his Commentaries on the Laws of England, “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”)
Or, as Matthew Schmitz writes in The New York Post, “even the most hateful people have rights. We can’t abridge them simply because a national mood commands us to do so. That is why the Pennsylvania Supreme Court has overturned Cosby’s conviction…(v)indicating justice requires rejecting the mistakes of #MeToo.”
But maybe one of the most important results of this case is the utter lack of credibility which now attaches to DA Steele and his office. What defendant can trust in the deal he struck with one prosecutor, if 10 years later, his successor bows to public pressure and goes back on that promise?
Illustration: Pixabay