The Cosby (S***) Show: The Legal and Moral Failings That Freed Bill Cosby

Bill Cosby in 2012. Photo by the Office of Senator Chris Coons, Public domain, via Wikimedia Commons

One thing about constitutional rights is that they exist for every American. Even the worst of us. As a defense attorney I used to be asked all the time “How can you defend someone you know is guilty of XYZ?” My answer was always the same. My job was to protect my client’s rights, including the right to present a defense, so that those rights are still there for the innocent. Even if it means a bad guy goes free? they would often respond. Yes, even if.

On Wednesday, June 30th, 2021, admitted serial rapist Bill Cosby got out of prison when the Pennsylvania Supreme Court overturned his conviction. Despite what some have said, it was not “on a technicality.” A technicality is something more akin to a typo; Cosby is free because the Court found that his constitutional rights were violated.

Were they?

Here is the tl;dr version: In 2005, District Attorney Bruce Castor declined to prosecute the case against Cosby over allegations by Andrea Constand that Cosby drugged and raped her. Castor made a public statement of his decision, citing his belief that there was not enough credible evidence to prevail. Because he was not facing any charges, Cosby could no longer invoke his right not to incriminate himself, meaning he had to testify in depositions for the lawsuit Constand then filed against him. The depositions revealed very damning facts about Cosby’s actions. A decade later, after Cosby had settled the lawsuit for $3.38 million, the new D.A. reopened the case and charged him, using his deposition testimony against him at trial to secure a conviction . Now, the Court says that Cosby relied on the state’s “promise” not to prosecute him when he gave those statements at deposition, and that’s just not fair.

Some basic explanation of a few concepts is in order here. First, parallel proceedings: A parallel proceeding is when a civil case is brought at the same time a criminal case is pending. So, a person is facing both criminal repercussions from the state and a lawsuit from the alleged victim. Because criminal charges are pending, the accused can refuse to give deposition testimony by invoking the right against self-incrimination. If the charges go away, so does that privilege.

The Fifth Amendment: in pertinent part the Fifth Amendment provides that no person can be compelled to give evidence against themselves. This is a pretty basic bedrock principle of our criminal justice system. It’s why we have Miranda rights, and why the defendant is never required to testify at their own criminal trial. The entire burden of proof is on the state, and the defendant does not have to help.

Some big brains on Twitter yesterday opined that invoking one’s Fifth Amendment means one is guilty. But this is not the case. To illustrate: Imagine you are walking down Main Street at 3 pm. At 3:05 pm, the Main Street Bank is robbed. You somehow find yourself the prime suspect and must stand trial. If you were required to take the stand, even just admitting that you were, in fact, on Main Street just before the robbery helps the state prove their case. Or perhaps you are charged with murder and own the same caliber gun as was used in the murder. Admitting to owning that type of weapon would be evidence against you. The Fifth Amendment means you don’t have to testify or provide any statement at all, because, as they say, anything you say can and will be used against you.

The Fifth Amendment right can be invoked in civil litigation as well. If criminal charges were pending — meaning he had been charged or indicted — against Cosby when Constand’s lawyers attempted to depose him, he could have “pled the Fifth”. Waiting until the criminal case is concluded to file a lawsuit is not always possible due to statutes of limitation and the slow-turning wheels of justice. This results in parallel proceedings and the inability to obtain deposition testimony from the defendant. I have personally handled cases in which there were parallel proceedings and, in my experience, the judge in the civil case has ordered a “stay”, or a temporary halt until the criminal case is over.

It played out differently in the Cosby case. First, there were never any charges filed by the original DA back in 2005. There were multiple reasons given by DA Castor at the time, chief among them being that the victim waited a year to report. I’ll refrain from a diatribe here about how stupid that is, but Castor exercised his prosecutorial discretion not to charge Cosby.

Protestors outside a Bill Cosby performance in 2016. Photo by pixeIhouse from Canada, CC BY 2.0 , via Wikimedia Commons

Fast-forward to 2015 when the new DA Risa Ferman, who had worked for Castor, announced her decision to proceed with charges against Cosby. Castor wrote to Ferman to try to dissuade her. He claimed that she had been a party to the 2005 decision, which she denies. Further, he claimed that the impetus for his decision was to make it easier for Constand to prevail in her lawsuit because the Fifth Amendment protections would be lifted, and Cosby would have to answer questions at deposition. His letter to Ferman claimed that Constand’s lawyers were aware of and proponents of the decision, which he called an “agreement” and a promise”:

…those lawyers representing [Constand] civilly, whose names I did not remember until I saw them in recent media accounts, were part of this agreement because they wanted to make Cosby testify. I believed at the time that they thought making him testify would solidify their civil case, but the only way to do that was for us (the Commonwealth) to promise not to prosecute him.

This 2015 letter is the first time Castor’s supposed motivation to assist the civil suit appears on record or in writing. Cosby’s lawyers fought the admissibility of the depositions at his criminal trial, and an evidentiary hearing was held, at which time Castor again claimed that depriving Cosby of the ability to plead the fifth in the civil trial was his motivation and that all parties were aware of and approved of the plan. Constand’s lawyers denied that was the case, and testified they learned of the non-prosecution decision only when contacted by a reporter. The lower court, and later the intermediate appellate court, agreed with the Commonwealth and permitted the introduction of the deposition testimony at trial.

The Supreme Court of Pennsylvania had to determine a few things: 1)whether a prosecutor can unilaterally bind the commonwealth through a declaration; 2)whether the decision not to prosecute constituted an agreement upon which Cosby reasonably relied to his detriment.¹

Prosecutors make non-charging decisions all the time. Most of the time you don’t hear about them, because they are not newsworthy. It is also not unusual for a subsequent prosecutor to take a second look at a case and come to a different decision, as apparently happened here. What the Pennsylvania Supreme Court took issue with here is that Cosby gave deposition testimony — quite damning testimony — believing that the criminal charges were disposed of for all time.

When Bruce Castor made his decision, he did so very publicly with a press release. His statement indicated he did not feel the criminal case was viable due to Constand’s delay of a year in reporting, what he deemed “inconsistencies” in her statements, and other reasons related to actions of the victim.² This was the extent of what the state’s high court would later deem a “promise” that Cosby would not be prosecuted.

In and of itself, a prosecutor’s decision not to prosecute is not binding. New or stronger evidence can surface, or as happened here, a subsequent prosecutor could reexamine and come to another decision. There are exceptions, though, such as when a prosecutor agrees not to charge a person with a crime in exchange for a guilty plea to another crime, or in exchange for testimony against some other defendant. In those situations, the accused should enjoy the benefit of their bargain. In some situations, a defendant agrees to testify in another case with the agreement that this testimony cannot be used against him even if he or she is later prosecuted. In all of these situations, the state inures a benefit in exchange for some concession to the defendant and the defendant waives some measure of rights in order to receive the benefit. It is inarguable that in these situations, the state is bound by the terms of the agreement, barring some relevant malfeasance or dishonesty on the part of the defendant.

Bruce Castor on the floor of the US Senate during the Impeachment Trial of President Trump. Photo by United States Senate, Public domain, via Wikimedia Commons

Bruce Castor’s publicly declared decision not to prosecute Bill Cosby was not in exchange for anything. In fact, at a hearing on the admissibility of deposition testimony, Castor testified that there “was no agreement” or “quid pro quo” with Cosby. There was never anything in writing from 2005 which indicated a collaborative agreement with any of the other lawyers in the case (certainly not Constand’s lawyer.) The Pennsylvania Supreme Court describes this unilateral decision as an “agreement” and a “promise” (a position on which they later backtrack.) Further, they say, it was a promise that Cosby then relied upon to his detriment when he gave a deposition under the belief that his words would not be used against him in a criminal case. The Court stated that promissory estoppel, a contract law concept, is applicable here. Promissory estoppel refers to a situation in which one party to a contract acts in accordance with a promise made, and then suffers some sort of injury when the promise is broken.

In its decision, the PA Supreme Court (changing its position on whether an agreement existed,) argues that while no explicit agreement exists in writing to forever bar Cosby’s prosecution in this case, it was implied. In other words, it might not be what he said, but that’s what he meant. This is not based on any evidence or testimony from 2005, but only from the testimony presented at hearings over a decade later. The Court concedes that there was no binding immunity agreement, and accepts that what we have her is a mere “unilateral exercise of prosecutorial discretion.” That is not dispositive, however. Per the Court, “…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.”

Inexplicably, the Court reverts to calling Castor’s decision, which they acknowledged was not made in concert with the other attorneys, a “promise”:

For the reasons detailed below, 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.

In support, the Court cites three other cases in which the government was held to promises made to a defendant. But two of these cases included agreements made as part of a plea bargain, and the third involved an agreement not to prosecute in exchange for the defendant’s cooperation.

Let me digress again to go over another legal concept. The Court here has opted to apply principles of contract law, citing authority allowing them to do so. Therefore, I have to dig deep into the part of my brain that still retains a bit of what I learned from good ol’ Professor Vince Cardi, my contracts instructor in my first year of law school. A valid contract requires five things: mutual agreement (assent), offer and acceptance, consideration, capacity, and legality. It seems to me that at least two of these elements are missing here.

First, offer and acceptance. There was no offer made here; just a declaration of Castor’s intent not to do something. There was no acceptance (and of course no rejection), nor could there have been. Castor’s ability to act, or not act, was not contingent upon Cosby’s agreement of terms. Secondly, there was no consideration, which is a thing of value given in exchange for the promise of another. Simplified, consideration is the cash paid in exchange for the car you agree to buy, or the testimony given in exchange for a lighter prison term. Without consideration, an offer is just a gift, not a contract. As I have already noted above, there was no consideration here; Castor got nothing from Cosby in exchange for his decision not to prosecute.

The Court then abandons its contract theory and says that equity can require enforcement, if not contract principles. The case cited in support is Government of the Virgin Islands v. Scotland, in which the government and the defendant had finalized the terms of a plea bargain. Before it could be submitted to the Court, the prosecutor tried to add a stipulation. The defendant did not agree and sough to enforce the deal he had agreed to. The trial court and the appellate court ruled in favor of the government:

The appellate court noted that, absent detrimental reliance upon the prosecutor’s offer, a defendant’s due process rights were sufficiently safeguarded by his right to a jury trial. The court cautioned, however, that, by contrast, when a “defendant detrimentally relies on the government’s promise, the resulting harm from this induced reliance implicates due process guarantees.”

The Court applies this analysis to Cosby, once again hinging its reasoning on categorizing the prosecution decision a “promise”.

The Court, being made up of ostensibly learned legal scholars, acknowledges the vast difference between a unilateral declaration and a plea agreement. The Court concedes that “[a prosecutor’s] exercise of discretion is not per se enforceable in the same way that a bargained-for exchange is under contract law.” Good to know they haven’t completely forgotten what they learned as 1Ls. Nevertheless, says the Court, “[t]he foregoing precedents make clear that, at a minimum, when a defendant relies to his or her detriment upon the acts of a prosecutor, his or her due process rights are implicated.”

Not all discretionary prosecution decisions are permanent bars to future prosecution. The Court gives examples of what it describes as conditional decisions, such as when a prosecutor’s decision comes with a caveat: I decline to prosecute right now, but may change my mind if… But here, they say, Bruce Castor made an unconditional declaration.

An entirely different situation arises when the decision not to prosecute is unconditional, is presented as absolute and final, or is announced in such a way that it induces the defendant to act in reliance thereupon. When a non-prosecution decision is conveyed in such a way, and when a defendant, having no indication to the contrary, detrimentally relies upon that decision, due process may warrant preclusion of the prosecution… This is what happened in this case.

Did it though? I personally would not have felt comfortable advising my client that he was in the clear based solely on the declaration made by Bruce Castor. I would have asked for something more explicit, in writing, that clearly indicated the intention to permanently bar prosecution of the matter at hand.

The Court seems to realize that the statement alone offers no support to the contention that the decision not to prosecute was intended to induce Cosby to implicate himself. Instead, they simply accept that as a fact:

Rather, the due process implications arise because Cosby detrimentally relied upon the Commonwealth’s decision, which was the district attorney’s ultimate intent in issuing the press release. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby’s reliance.

I submit that there was no evidence of record indicating that he did intend that. The Court cites Cosby’s decision, with the advice of his lawyers, to testify at the depositions without pleading the fifth as proof; I see it as bad lawyering, if anything. Besides that, without pending charges, the Fifth Amendment cannot shield one from being deposed. Had he tried to plead the fifth, the matter would have ended up in court on a motion to compel, at which time Castor would have been put on the stand to declare whether charges were forthcoming. But that didn’t happen, and so we are stuck with an explanation, provided 10-15 years later, that half of the lawyers involved (the half who did not represent Cosby) deny ever hearing.

The Court’s decision takes as fact that Cosby understood the decision not to prosecute as permanent, reasoning that he otherwise would not have provided testimony at deposition. But this ignores the fact that Cosby gave statements prior to Castor’s decision, as well. He claimed it was a consensual encounter, a defense he stuck to in the civil litigation even as he admitted to his propensity to drug women before engaging in sex acts with them.

As a lawyer who has been on both sides of the courtroom, I could strongly argue on either side here. On one hand, I am usually the first to cheer a decision which champions the rights of a defendant over the power of the government. And had Castor unequivocally stated that his intention was to bind the commonwealth and forever absolve Cosby of criminal responsibility, I would absolutely agree with this decision. I also know that if I was Cosby’s civil lawyer, I’d have made the same arguments. But the legal analysis used by the Court to come to this conclusion just doesn’t hold water for me.

I rarely, if ever, take the government’s side in these things, even when it is an admitted serial rapist who benefits. But I can’t get there as a matter of law here. In my opinion, the decision not to charge Cosby in 2005 was wrong. Had Castor done the right thing back then, we would not be where we are. If he hadn’t faulted the victim for her delay in coming forward and for how she handled things in the aftermath of her assault, perhaps Cosby would have gone to trial and been convicted in 2005. Castor, and indeed Constand, stood to lose nothing by going to trial that was otherwise gained by refusing to prosecute. Even if Cosby had been tried and acquitted back then, Constand still could have sued him civilly (c.f., the Goldman Family v. OJ Simpson).

I can’t speak for how Andrea Constand feels, but she appears to be doing well and taking the Court’s decision in stride. She can take some solace in knowing that in the end, Bill Cosby is still an old man who has fallen far from the elevated station in life he once enjoyed. And he is an old man who just spent three years in prison, likely living on borrowed time now. While I imagine he still has some measure of his fortune, he no longer has the respect and adoration of the public. He may have won his court battle, but he is not vindicated; his name is now synonymous with Quaaludes and date rape instead of ugly sweaters and pudding pops.

1. The Court also had before it the issue of the introduction of testimony of other accusers, but for the purposes of this post I focus on the more salient issue. The Court never reached the other.
2. I could, and may, write an entire other post about this part of the story.