Bill Cosby has been released from prison. He walks among us again as a free man.
No, it’s not because he already served his sentence. It’s not because he was granted parole from his conviction, either. Nor did Pennsylvania’s Governor grant a pardon or issue clemency. Instead, the Pennsylvania Supreme Court overturned Cosby’s conviction on appeal.
Cosby had reached an agreement with a former prosecutor, Bruce Castor, under which Cosby was not to be criminally charged for the incident which eventually resulted in his 2018 conviction. Castor has gained more recent notoriety as being a member of former President Donald Trump’s legal team during his second impeachment trial. In short, though, Castor, while chief prosecutor for Montgomery County, Pennsylvania, had reached a deal with Cosby under which Castor agreed to grant Cosby immunity from all prosecution related to the incident if Cosby agreed to testify at a civil trial initiated by his accuser, which was to take place in 2005.
That accuser was Andrea Constand. Constand accused Cosby of drugging and molesting her at his estate in 2004. At the time, Constand was a Temple University employee, a former professional basketball player who had risen to be the head of basketball operations at the university. Castor chose to grant Cosby immunity from prosecution because he felt prosecutors would have difficulty confirming the forensic evidence from the case, without Cosby’s prior admission to the crimes, at trial.
Instead, by granting Cosby immunity from prosecution, Castor sought to force Cosby’s hand into testifying at Constand’s civil trial against him. As the Pennsylvania Supreme Court wrote in its decision, “Seeking ‘some measure of justice’ for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.” Cosby relied on this immunity while testifying at Constand’s civil trial. As the Pennsylvania Supreme Court noted, he “proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.”
Yet, years later, a new prosecutor was elected in Montgomery County. Feeling unbound by his predecessor’s immunity agreement with Cosby, new District Attorney Kevin Steele brought charges against Cosby related to the 2004 incident with Constand.
At trial on those charges, Steele and his office used Cosby’s incriminating testimony at Constand’s 2005 civil trial against him. In fact, his testimony became a cornerstone of the People’s case. Ultimately, Cosby was convicted on three counts of aggravated indecent assault in April 2018. He was sentenced to a term of three to ten years in prison.
On appeal, however, the Pennsylvania Supreme Court found an issue with the revocation of Cosby’s immunity agreement simply because a new prosecutor had taken office. As the Court wrote, “When an unconditional charging decision is made publicly, and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity…A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”
The Court concluded, then, that “For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.”
Cosby was released from prison yesterday, shortly after the Court’s decision was announced. A spokesman for Cosby told reporters, upon his release, that “This is what we have been fighting for and this is justice and justice for Black America.” Sentiments were not shared by those in the Montgomery County District Attorney’s Office. Mr. Steele, in a statement released Wednesday, noted “Cosby was found guilty by a jury and now goes free on a procedural issue that is irrelevant to the facts of the crime…My hope is that this decision will not dampen the reporting of sexual assaults by victims. Prosecutors in my office will continue to follow the evidence wherever and to whomever it leads. We still believe that no one is above the law – including those who are rich, famous, and powerful.”
Prosecutors could still, should they so choose, seek to appeal the Pennsylvania Supreme Court’s decision. Such an appeal would be to the U.S. Supreme Court, and would likely highlight the issue of due process and argue that retrial of Cosby could be granted should the prosecution refrain from including his 2005 civil trial testimony. The U.S. Supreme Court may elect against hearing the case, however, given its highly publicized nature and its near singular focus on procedural matters.
Yesterday’s decision also gave hope to others entangled in the #MeToo movement’s eye-opening allegations of misconduct against prominent men. Harvey Weinstein’s legal team issued a statement following the release of the Court’s decision, highlighting the Court’s ability to follow the facts and the law under the pressure of a case that garnered much media attention. In sum, the Weinstein legal team noted, “This decision also reaffirms our confidence that the Appellate Division in New York will reach the similarly correct decision in Harvey Weinstein’s appeal, considering the abundance of issues that cry out for a reversal.” Weinstein had previously been sentenced to serve 23 years on rape and sexual assault charges.
The Pennsylvania Supreme Court’s decision overturning Cosby’s conviction can be read here: https://cdn.cnn.com/cnn/2021/images/06/30/j-100-2020mo.-.104821740139246918.pdf.