The disgraced actor and comedian Bill Cosby walked free this week after three years in prison when the Pennsylvania Supreme Court threw out his 2018 convictions on charges of drugging and sexually assaulting Andrea Constand in 2004 when she was a Temple University employee.
The abrupt reversal of the first high-profile sexual assault conviction after the #MeToo movement has attracted particular interest, raising questions such as whether Cosby could still face prosecution over any of the accusations of sexual assault and misconduct that more than 50 women have leveled against him.
Here is a dissection of the legal issues.
Why did the court overturn the conviction?
Because prosecutors violated Cosby’s rights by reneging on an apparent promise not to charge him, the court majority ruled.
In 2005, Bruce L. Castor Jr., who was then the district attorney in Montgomery County, Pennsylvania, outside Philadelphia, issued a news release saying that he had declined to charge Cosby over the matter. Cosby then sat for depositions in a separate lawsuit filed against him by Constand, which he paid her $3.38 million to settle in 2006.
But a subsequent district attorney reversed Castor’s decision and charged the entertainer with assaulting Constand after all. In the trial, prosecutors used what Cosby had said in the deposition — his admission that in decades past, he had given quaaludes to women in an effort to have sex with them — as evidence against him.
“We hold 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,” Justice David Norman Wecht wrote.
Why did Castor say he would not charge Cosby?
Castor — who this year was one of the defense lawyers in President Donald Trump’s second impeachment trial before the Senate — has said that he announced in 2005 that Cosby would not be charged in an effort to prevent him from invoking his Fifth Amendment right against self-incrimination so he would have to testify in Constand’s coming civil case.
In 2016, when the Cosby defense team was trying to get the criminal charges thrown out, they took the unusual step of calling Castor as a witness at a pretrial hearing. He testified that he had believed Constand but did not think the evidence was enough to prove her accusations beyond a reasonable doubt. He defended his decision as a way to help her suit.
“I decided that we would not prosecute Mr. Cosby, and that would set a chain of events that would get some justice for Andrea Constand,” Castor said.
Did Castor make a binding promise?
Yes, said the Supreme Court majority.
There was no formal, written non-prosecution agreement — just the terse news release — and Constand and her lawyers have said they were not told of any promise or deal.
Against that backdrop, a legal dispute arose over whether Castor had in fact offered a binding promise that Cosby would never be charged — and, if he did, whether he had the authority to do so. Castor maintained he had made such a pledge, but the trial judge disagreed and ruled that the criminal case brought by the new district attorney could proceed. But the Supreme Court majority backed Castor’s interpretation of what he had done.
While that does not necessarily also mean that immunizing Cosby from prosecution was the right thing to do, Castor said in a phone interview Wednesday that he believed his prosecutorial decision-making in 2005 had been “exonerated” by the Supreme Court’s decision. The ruling was a “shellacking” for the current district attorney’s office, he said.
“I was right back in 2005, and I’m right in 2021,” Castor said. “I’m proud of our Supreme Court for having the courage to make an unpopular decision.”
Does the ruling mean Cosby did not commit a crime against Constand?
No. It just means that he cannot be prosecuted for it.
Wecht acknowledged that the court’s decision to bar prosecution on those particular charges was “both severe and rare,” but he said it was necessary. Even though society has a strong interest in prosecuting crimes, he wrote, it has an even stronger interest “in ensuring that the constitutional rights of the people are vindicated.”
Might Cosby face a new trial?
Not for assaulting Constand. Wecht’s majority opinion — for four of the seven justices — said, “He must be discharged, and any future prosecution on these particular charges must be barred.”
(Two other justices agreed that the conviction should be thrown out because “due process does not permit the government to engage in this type of coercive bait-and-switch,” but they would have permitted a retrial that did not use the evidence from Cosby’s deposition. The seventh justice disagreed with the majority but indicated that if it were not moot, he would be inclined to order a new trial for other reasons.)
This immunity from prosecution applies only to the specific accusations that Cosby drugged and assaulted Constand. Other women across the country have also come forward to accuse the entertainer of similarly assaulting them in years past. But those accusations involved encounters that were so long ago that statutes of limitations bar charging him over them.
Could prosecutors appeal the ruling?
Yes. They could ask the US Supreme Court to review the Pennsylvania justices’ constitutional analysis.
Will this ruling affect other #MeToo cases?
Not directly. But in a statement, Constand and her lawyers said the decision was not only disappointing but also expressed concerns “that it may discourage those who seek justice for sexual assault in the criminal justice system from reporting or participating in the prosecution of the assailant or may force a victim to choose between filing either a criminal or civil action.”