I will dive deeper into the Bill Cosby sexual assault cases, his conviction, and his ultimate reversal on appeal on June 30, 2021, when Pennsylvania Supreme Court Justice David Wecht made history last week in overturning Bill Cosby’s sentence of three counts of aggravated indecent assault. Buckle yourself in, it’s going to be a long ride.
The Despicable Bill Cosby Sexual Assault Cases
This is a series of case analyses that you might find interesting.
The Gist of What Happened
America loved comedian William Henry Cosby, Jr.. He played the part of quirky Doctor Huxtable on the Bill Cosby Show, among other roles. But underneath all that funny was a sexual predator, a man who drugged his victims and raped them. In the ensuing years after the show was cancelled, many women spoke out against him, sued him, and tried to get him convicted. The problem was (at least criminally) that the Statute of Limitations had run its toll for most of those cases.
But not for Andrea Constand. She was sexually assaulted by Cosby in 2004 at his Cheltenham residence. Cosby gave three blue pills to Constand. These pills were later identified to by Benadryl. Constand needed to be helped to the sofa because she suffered from slurred speech and an inability to stand. She soon lost consciousness. While she was incapacitated, Cosby fondled her breasts, penetrated her vagina with his fingers, and used her hand to masturbate him.
She kept this incident to herself for nearly a year, but then she decided to continue her relationship (not physically) with Cosby. She made several phone calls, presumably with the intent to entrap him. She also used a recording device. She also filed a police complaint against Cosby.
In 2005, Montgomery County District Attorney Bruce Castor evaluated the likelihood of a successful prosecution. He saw difficulties with that Constand did not promptly file a complaint. She also had no corroborating evidence, and Castor couldn’t introduce other potential claimants’ testimony either. Castor also decided that Constand was also not a reliable witness. Her behavior after the attack was troubling, including her continued relationship with Cosby and her entrapment attempts.
Castor decided to not prosecute Cosby for the sexual assault of Constand. He released a press release about his decision. He reasoned that if he eliminated the possibility of prosecuting Cosby, Constand would have a civil avenue open to her because Cosby could not shield himself under the pesky Fifth Amendment privilege against self-incrimination. That’s the privilege giving rise to the colloquial term “I plead the Fifth,” and it means that you don’t want to say anything in anything official (this includes proceedings other than court hearings, by the way) to land you in criminal hot water.
On March 8, 2005, Constand filed a civil lawsuit against Cosby in the United States District Court for the Eastern District of Pennsylvania. Cosby relied upon said decision of Castor’s not to prosecute him and provided four sworn depositions, in which he made several incriminating statements against himself.
Eventually, the parties settled the civil suit for $3.38 million. The terms were initially sealed, but following a media request, the federal judge who presided over the suit unsealed the records in 2015.
Commonwealth v. William Henry Cosby Jr.
At that time, Castor moved on and became a Montgomery County Commissioner. He was succeeded by his former first assistant, Risa Vetri Ferman. Ferman reopened the case against Cosby. Castor then emailed Ferman, reminding her of the decision not to prosecute so that any Fifth Amendment could not be invoked. Ferman replied, asking for a written agreement (despite the press release). Freeman also traveled to Canada and sought out Constant, who agreed to help with the prosecution despite it being part of the civil suit settlement.
On January 11, 2016, Cosby filed a petition for a writ of habeas corpus based upon the agreement not to prosecute. The trial court held hearings on February 2 and 3, 2016. The trial court denied the habeas corpus, explaining that “the only conclusion that was apparent” from the record “was that no agreement or promise not to prosecute ever existed, only the exercise of prosecutorial discretion.”
In plain speak, Cosby filed something to dismiss the three criminal charges of aggravated indecent assault of the Constand incident, which the trial court said no because an agreement not to prosecute didn’t exist, only what is referred to as government “discretion.” Discretion is something that government employees have. It affects all the way to whether the ticket cop gives out a fine for double parking to whether a copy wishes to arrest someone to, in this case, whether the DA wants to prosecute a potential defendant.
The trial court also noted that immunity is granted through a court, not bequeathed by the DA, which we all know is B.S. because people are “granted” immunity all the time. Such as, I will testify in exchange you won’t file charges against me or reduce my charges or dismiss my charges.
A bunch of other motions were introduced, including a motion to have several women testify. Normally, prior bad acts cannot be introduced into trial. There are many exceptions, including to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. That means, let’s say you beat up a friend in high school. The prosecution can’t introduce that dude’s testimony that you beat him up if you are on trial for beating up another person. Unless the prosecution is trying to show that you are doing it for a reason such as intent, e.g. you only beat up blue-eyed, blonde-haired dudes who are shorter than 5’5″.
In one of these motions, the trial court allowed the depositions to be entered into evidence. Cosby was tried and sentenced. He appealed to the Superior Court, who affirmed the trial court. He then appealed to the Pennsylvania Supreme Court.
Other Criminal Trials
Over 60 women have accused him of sexual assault or misconduct. Five women testified in the hearing of Commonwealth v. Cosby, and Cosby had three other criminal investigations: Judith Huth, Lili Bernard, and Chloe Goins. The prosecutors in all three cases declined to bring charges because the Statute of Limitations had run.
The Supreme Court Opinion
Commonwealth v. Cosby, 252 A.3d 1092 (Pa. 2021).
Majority Opinion by Justice Wecht
Concurring and Dissenting Opinion by Justice Doughtery
Dissenting Opinion by Justice Saylor
The Pennsylvania Supreme Court took up two questions. The first had to do with the prior bad acts (the testimony of the other women), but they did not address that issue because they took the second question. This question was written as:
(a) [District Attorney Castor] agreed that [Cosby] would not be prosecuted in order to force [Cosby’s] testimony at a deposition in [Constand’s] civil action;
(b) [the district attorney] issued a formal public statement reflecting that agreement; and
(c) [Cosby] reasonably relied upon those oral and written statements by providing deposition testimony in the civil action, thus forfeiting his constitutional right against self-incrimination,
did the Panel err in affirming the trial court’s decision to allow not only the prosecution of [Cosby] but the admission of [Cosby’s] civil deposition testimony?
We have a couple of legal issues here. The trial court, in ruling against Cosby’s habeas corpus, decided two things:
(1) Castor and Cosby’s interactions was not a statutorily prescribed transactional immunity agreement.
(2) Castor’s testimony about the legal relationship between Castor and Cosby was inconsistent and “equivocal at best.”
Pennsylvania has a law about immunity — 42 Pa.C.S. § 5947. That law says that a prosecutor asks a judge to grant immunity to someone. The court then issues that order, and the person so protected cannot invoke the Fifth Amendment against self-incrimination. Sound familiar? That’s because, generally, that’s how it works. But Castor didn’t get a court order. Instead, he relied on his sovereign authority, e.g. he’s the DA.
Pennsylvania’s highest court ruled that when a prosecutor makes a guarantee, and a person relies on that guarantee, then there is a principle of “fundamental fairness” at play here. Meaning, you can’t say one thing and then do another, e.g. be an liar. Yeah, I’m looking at you, Ferman. You’re a social media, lime-light seeking asshole liar.
And the highest court in Pennsylvania all but said that, too. Pointing out that prosecutors are vested with a tremendous authority, they should be held to a tremendous standard of ethics. And, there is case law backing this up, mainly in the realm of plea negotiations. Santobello v. New York, 404 U.S. 257 (1971); Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976).
The court then examined contract law and decided that plea negotiations follow the principles of contract. Basically, again, don’t be a liar. Because of this assurance, Cosby reasonably relied upon it when testifying during the civil suit. The court said it best: Cosby was given an unconstitutional “coercive bait-and-switch.”
Maureen’s Legal Bottom Line
This case represents a district attorney (Ferman) who bowed to the pressures of social media popular opinion instead of her own sensibilities, not only as an attorney but also as a public servant. Frankly, she should be disbarred. Her behavior was unethical and stupid.
Please do not misunderstand my words: Cosby is a creep. But if a DA makes an agreement not to prosecute a potential defendant for whatever reasons, then the district attorney’s office must stringently adhere to that agreement. The DA makes agreements all the time, particularly in exchange for testimony or actions.
What are your thoughts about the Bill Cosby sexual assault cases, and what Bill Cosby did? Let me know in the comments!
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