Agreement not to prosecute Cosby leads to his freedom, exposes prosecution’s missteps

Agreement not to prosecute Cosby leads to his freedom, exposes prosecution’s missteps

The Pennsylvania Supreme Court’s stunning ruling Wednesday that vacated Bill Cosby’s 2018 indecent assault conviction — the latest twist in a case that was the first to test the legal bounds of the #MeToo era — drew swift outcry from sexual assault survivors and their advocates.

Lisa Bloom, an attorney who represents three women who have accused the married comedian of misconduct, put a fine point on what the court had decided, tweeting that “he is not released because he is innocent. He is released because a prosecutor promised him years ago that he would not be brought to justice, without even making a deal for him to do time.”

That nonprosecution agreement, which was cited in the split majority opinion of the seven-member court, was a cornerstone in the argument for Cosby’s release and has set off scrutiny over how the once-celebrated entertainer, who has been behind bars for almost three years, could walk free on what some are calling a technicality.

Legal experts say the justices’ decision to overturn the conviction was a possibility, although still seen as a long shot for the defense, and exposed the risks involved for prosecutors to build their cases based on previous testimony that Cosby said he gave on the assurance that he couldn’t be criminally charged.

“This was always a decent issue for appeal,” Danny Cevallos, an NBC News legal analyst, said. “It’s not often that a prosecutor makes a wacky deal for a defendant to go testify in a civil case and in exchange he won’t be prosecuted.”

Michelle Madden Dempsey, a former prosecutor in Illinois and a law professor at Villanova University, said the decision should not be interpreted as supporting Cosby’s claims of innocence.

The ruling drew on the fact that Cosby, 83, had waived his Fifth Amendment right against self-incrimination by agreeing to testify in a previous civil case brought by his accuser, Andrea Constand, which the justices said was evidence that he didn’t think he would be criminally charged.

The justices “thought it was a violation of his due process rights and fundamental fairness,” Dempsey said. “It’s such an unusual case, and I hope people don’t read too much into the court’s decision about what it says about the #MeToo movement. … And in no way at all does this decision undermine the credibility of Andrea Constand and other victims who testified against” Cosby.

The former “Cosby Show” star was arrested in 2015 on a felony sexual assault charge, as women came forward with allegations ranging from groping to sexual assault to rape amid the greater backdrop of the #MeToo movement that seeks to hold powerful men accountable.

Constand, a former Temple University employee, has said he drugged and violated her at his home in Cheltenham Township, near Philadelphia, in January 2004.

Cosby previously said under oath that he had consensual sexual contact with Constand, and he has denied all other allegations of wrongdoing.

In 2006, Constand settled a civil lawsuit against Cosby on confidential terms, and it was for that case that Cosby gave potentially incriminating testimony and acknowledged giving quaaludes to women he was pursuing for sex.

Bruce Castor Jr., the former district attorney of Montgomery County, Pennsylvania, has testified that he made the arrangement not to charge Cosby but to still get him to make sworn statements in the civil case because there was insufficient evidence at the time to bring forth a criminal prosecution.

Castor’s successors, however, decided to pursue charges and just barely met the January 2016 deadline to file them against Cosby before the 12-year statute of limitations expired.

While Cosby’s first trial in 2017 ended in a mistrial, a jury in his 2018 retrial convicted him on three counts of aggravated indecent assault against Constand. He was sentenced to three to 10 years in state prison.

Cosby’s fall from grace as a beloved sitcom star garnered international headlines, and he remained defiant while in prison, suggesting he was set up and the victim of a “political” vendetta.

Legal experts say the latest turn of events will only lead some to lay the blame at prosecutors’ feet: either on Castor — for cutting an arrangement with Cosby that he wouldn’t be charged, an agreement that was never put in writing — or against his successors who used Cosby’s past testimony against him and, whether they realized it or not, would violate his due process rights.

Justice David Wecht wrote in the majority opinion that Cosby “must be discharged, and any future prosecution on these particular charges must be barred,” meaning he can’t face trial again in this case, essentially blocking any recourse for his accusers.

In a statement, Montgomery County District Attorney Kevin Steele, the prosecutor who filed the criminal charge against Cosby, reiterated that Wednesday’s decision was not based on the facts that the jury heard.

“My hope is that this decision will not dampen the reporting of sexual assaults by victims,” Steele said. “We still believe that no one is above the law — including those who are rich, famous and powerful.”

While the justices don’t suggest prosecutorial overreach in the decision to bring Cosby to trial, somebody ultimately dropped the ball, Dempsey said, and there will be plenty of debate about whether an agreement with Cosby should have ever been made or whether Castor should have gotten a deal in writing to avoid any future confusion.

The dissenting opinion by Justice Kevin Dougherty alludes to the problematic missteps along the way.

“If district attorneys had the power to dole out irrevocable get-out-of-jail-free cards at will and without any judicial oversight, it would invite a host of abuses,” he wrote, adding that “one might reasonably wonder if such abuses were at work in this case, particularly given Castor’s odd and ever-shifting explanations for his actions.”

Laurie Levenson, a Loyola Law School professor in Los Angeles, said she believes the court’s ruling was not simply a technicality but is supported on legal grounds. Still, she doesn’t fault prosecutors for trying to use all the evidence at their disposal and said if their goal was to secure a conviction, they “had little choice but to try and use [Cosby’s] statements from the deposition testimony.”

“The biggest problem was not believing that their victim’s testimony would be enough for a conviction,” Levenson said in an email. “That was a judgment call. Today, there might be a different decision in other cases, especially if the courts become more open to allowing other victims to testify.”

Levenson said she doesn’t believe the ruling will have ramifications for other high-profile sex assault cases because the situation was so unique and stems from the nonprosecution arrangement that Cosby and prosecutors had made more than 15 years ago.

If anything, she said, “I think this case makes it less likely that prosecutors are going to make such promises in the future.”

Source : NBC News

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