Pennsylvania Supreme Court Overturns Cosby Conviction over ‘Non-Prosecution Agreement’

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By Ankita Joshi

PENNSYLVANIA – The Pennsylvania Supreme Court Wednesday overturned Bill Cosby’s sexual assault convictions on the grounds of “prosecutorial misconduct” in a 6-1 vote and have barred a retrial.

A “non-prosecution agreement” was found to have existed between the former district attorney, Bill Castor, Jr., and Cosby which would have prevented Cosby from being criminally charged in the case.

The agreement held in place was violated when Cosby stood trial and was convicted on three felony counts of aggravated indecent assault in 2018.

The opinion of the court for this violation was delivered by Justice David N. Wecht, and began with an introduction of the original investigation against Cosby in 2005.

DA Castor led the investigation of Andrea Constand’s claims against Cosby, and at the time had determined that there was a lack of forensic evidence and that most testimonies by witnesses would be inadmissible in court.

This led to the conclusion that “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”

In order to serve “some measure of justice” for the claims made by Constand, DA Castor made the decision to forego prosecuting Cosby, and instead would move forward with a civil action.

Thus, Cosby was forced to testify in these civil proceedings and provided four sworn depositions, which held many incriminating statements.

However, DA Castor’s successors chose to circumvent this decision, and continued with charging Cosby in criminal court, using the depositions from the civil proceedings to prosecute Cosby.

Constand’s testimony outlined her relationship with Cosby, which was primarily one of mentorship, until Cosby drugged and sexually assaulted her in 2004.

A year later, Constand filed a police report against Cosby for the assault, and was assigned to Sergeant Richard Schaeffer of the Cheltenham Police Department in Montgomery County.

After speaking with Sergeant Schaeffer about the assault, DA Castor issued a press release to inform the public that Cosby was under investigation for sexual assault.

Cosby was interviewed, and while he denied having sexual intercourse with Constand, he did admit that he and Constand had participated in “consensual” sexual activity. He also provided the pills he gave to Constand to the police, which were identified as Benadryl.

After going through the evidence, DA Castor identified multiple inconsistencies in Constand’s statements, and was worried about the fact that Constand had waited a year to report the assault and was still in contact with Cosby during that time.

Castor made the decision that a criminal trial could not be won, and issued a press release to the public that he was not going to prosecute Cosby.

And while Constand was not informed of this decision at the time, she moved forward and filed a civil lawsuit against Cosby.

By invoking the “non-prosecution agreement,” DA Castor had legally deprived Cosby of any right or ability to invoke the Fifth Amendment during any of the four depositions of the civil suit, the Supreme Court said.

Justice Wecht highlighted in the opinion that “no one involved with either side of the civil suit indicated on the record a belief that Cosby could be prosecuted in the future.”

Cosby maintained that his interactions with Constand had been consensual in his testimony, but also admitted to providing Quaaludes, a central nervous system depressant, to other women he wanted to have sexual intercourse with.

The civil suit was settled for $3.38 million.

However, in 2015, the federal judge who presided over the civil suit unsealed the records.

Consequently, DA Risa Vetri Ferman decided to reopen the criminal investigation of Constand’s claims.

While former DA Castor reached out to DA Ferman to advise her not to continue with the criminal investigation due to his previous agreement with Cosby, DA Ferman pressed forward.

Constand was interviewed, even though she had specifically agreed not to be in 2005, and other women who had accused Cosby were identified and located. As a result, Cosby was charged on three counts of aggravated indecent assault.

On January 11, 2016, Cosby filed a petition for a writ of habeas corpus requesting a dismissal of charges based on former DA Castor’s agreement.

When contacted, former DA Castor also noted that “he meant that a prosecution may be available only if other victims were discovered, with charges related only to those victims, and without the use of Cosby’s depositions in the Constand matter.”

The trial court which ruled on this petition found that there “was that no agreement or promise not to prosecute ever existed, only the exercise of prosecutorial discretion.”

In addition, the trial court cited that “any reliance on a press release as a grant of immunity was unreasonable,” and that none of Cosby’s attorneys had “obtained Castor’s promise in writing or memorialized it in any way.”

After filing an appeal and a notice of review with the Superior Court, Cosby’s pre-trial efforts were once again rejected, and the trial moved forward.

Cosby also filed a motion to suppress after his preliminary hearing, which was denied and it was found that there was “no [c]onstitutional barrier to the use of [Cosby’s] civil deposition testimony.”

In addition to Cosby’s civil deposition testimony, the Commonwealth sought to include testimonies from other alleged victims, and was permitted to have one of the alleged victims to testify at trial.

On June 17, 2017, after seven days of deliberation, the jury announced they could not reach a unanimous decision, and a mistrial was declared.

Prior to the second trial, the Commonwealth sought to introduce more testimonies of alleged victims from the 1980s, and four more alleged victims were allowed to testify, despite Cosby’s objections about the protection of his due process rights and the statute of limitations present in those testimonies.

Each of the five women testified that Cosby had been either a friend or a mentor and had drugged and sexually assaulted them, which allowed the court to determine a “signature of the same perpetrator.”

These testimonies helped establish a prior bad acts evidence in the Constand case, and found “that [Cosby] could not have possibly believed that Constand consented to the digital penetrations as well as his intent in administering an intoxicant.”

The jury found Cosby guilty of all three felony counts of aggravated indecent assault, and Cosby was deemed a “sexually violent predator.”

During the appeals process, the Superior Court ruled the five prior bad acts witnesses established a “predictable pattern” that reflected Cosby’s “unique sexual assault playbook,” and were thus admissible.

The Superior Court also ruled only a court has enough discretion to guarantee immunity, and former DA Castor’s promise could be revoked.

This included that there was “virtually no evidence in the record that [Cosby] actually declined to assert his Fifth Amendment rights at the civil deposition based on Mr. Castor’s purported promise not to prosecute,” and found no issue with the trial court’s decision to use the deposition testimony.

On June 23, 2020, the Pennsylvania Supreme Court granted Cosby’s petition for allowance of appeal on two issues: the prejudicial nature of the testimonies of the alleged victims from over 15 years ago, and the non-prosecution agreement made by former D.A. Castor.

Castor’s 2005 press release on his decision not to prosecute Cosby was cited, and it was found that since Cosby was no longer “exposed to criminal liability relating to the Constand allegations,” his Fifth Amendment Rights were revoked and he was subject to make incriminating statements.

And while the Pennsylvania Supreme Court is in agreement with the trial court that no formal promise of immunity had been made, former DA Castor’s signature on the press release is “indicative of his intent to forever preclude prosecution of Cosby for the 2004 incident,” and holds a high level of prosecutorial discretion, the court said.

“The question becomes whether, and under what circumstances, a prosecutor’s exercise of his or her charging discretion binds future prosecutors ‘exercise of the same discretion,” stated Justice Wecht.

Based on that question, it was found that “when a prosecutor makes an unconditional promise of non-prosecution, 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.”

And while former DA Castor’s press release does not necessarily create a due process entitlement, the “due process implications arise because Cosby detrimentally relied upon the Commonwealth’s decision,” said the court.

Additionally, the Fourteenth Amendment was cited by the PA Supreme Court, noting that “[n]o person …shall be compelled in any criminal case to be a witness against himself,” and “serves as a safeguard of conscience and human dignity and freedom of expression as well.”

Towards the end of the opinion, Justice Wecht notes that the proposed remedy of a third criminal trial, without the deposed testimony, “falls short of the relief necessary to remedy the constitutional violation,” as suppression of the testimony “is insufficient to provide a full remedy of the consequences of the due process violation.”

The final decision reached in the opinion was that the only remedy that can “restore Cosby to the status quo ante” is a full discharge and no future prosecution on the above charges.

Cosby’s accusers, their attorneys, and many anti-sexual assault advocates have expressed their outrage over this decision.

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About The Author

Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.

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