Convicting Bill Cosby: “An Unconstitutional Coercive Bait-and-Switch”


“They tell you to follow your dreams. Does anyone say you have to wake up first?” — Bill Cosby.

The Constitution woke up.  “While the prosecutor’s discretion in charging decisions is undoubtedly vast,” said the Pennsylvania Supreme Court, “it is not exempt from basic principles of fundamental fairness, nor can it be wielded in a manner that violates a defendant’s rights.”

Put another way. . . the Constitution doesn’t tolerate a conviction extorted by prosecutorial bait-and-switch.

“Finally! A terrible wrong is being righted – a miscarriage of justice of justice is corrected!” tweeted Clair Huxtable, aka Phylicia Rashad, dean of Howard University College of Arts.  She then had to explain to the students  howling for her resignation that this didn’t make her a supporter of sexual assault.

The 79-page Decision sets out the facts:

The complainant was 31-year old Andrea Constand, administrator of Temple University’s basketball program. She struck up a friendship with Cosby, hoping he would launch her in a sportscasting career. He was attracted to her and invited her to his Pennsylvania home several times. He made mild but unmistakable passes.

In 2004, Constand, having decided to return to her native Canada, visited Cosby at his home to discuss her plans.   She said he gave her a glass of wine and some little blue pills which she swallowed without asking what they were. Some sexual fondling followed.  Cosby said it was consensual. Constand said it wasn’t.

She nevertheless kept up apparently friendly relations with him. Meanwhile she consulted civil lawyers in Philadelphia about a lawsuit.

In 2005, a year after the blue pills incident, Constand filed a complaint with the Canadian police. She then phoned Cosby, secretly recording the conversation, asking what the pills were.  They turned out to be Benadryl, an antihistamine that causes drowsiness.

The case was referred to Bruce Castor, District Attorney of Montgomery Co., Pa.  Cosby was questioned and his home searched.  Castor’s First Assistant Risa Ferman investigated allegations by other women.

Castor concluded that the allegations were unreliable and that Constand had “credibility issues.” He considered the proof  insufficient for a criminal conviction.

But Castor figured that as a “Minister of Justice” he would pave the way for Constand to sue Crosby in civil court. He devised a plan whereby his office would agree never to pursue criminal charges for the incident. That way, Cosby would be stripped of his Fifth Amendment rights.

The Fifth Amendment right against self-incrimination, as you remember, applies in any kind of legal proceeding, civil or criminal. But if the prosecution guarantees that you won’t be prosecuted, you can’t be incriminated.  You’re not protected by the Fifth. You can be compelled to answer questions under oath in a lawsuit. The plaintiff can use your answers to sue you for millions of dollars, but that’s not “incrimination.”

After D.A. Castor publicly announced that his office wouldn’t pursue charges, Constand lost no time in bringing a lawsuit. Cosby was forced to testify in depositions without Fifth Amendment protection. The case was settled and Constand got $3.38 mil in exchange for an agreement not to pursue criminal charges. The deposition minutes were sealed under an interim order.

(Departing from the Decision for a moment) In the meantime, Cosby was taking heat for what is alternatively described as advocating for better parenting or blaming black people for their problems.  A young black comedian drew laughs by calling him “the smuggest old black man public persona that I hate. ‘Pull your pants up, black people. I was on TV in the ’80’s I can talk down to you because I had a successful sitcom.’ Yeah, but you rape women, Bill Cosby.”

This apparently rekindled media attention. In 2015 – ten years after the settlement – a federal District Court granted the media’s bid to unseal the deposition minutes. The court opined that Cosby had a diminished right to privacy because he publicly expressed his views on social issues. The court sneered, “Defendant has donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, childrearing, family life, education, and crime.”

(Back to the Decision) By this time, Castor’s First Assistant Risa Ferman had taken over as D.A. She instituted criminal charges, claiming she’d never heard of the deal. Ha, ha, fooled you, sucker! We’re using your deposition testimony to throw you in jail.

Constand forgot about the conditions of her settlement and testified against Cosby.  Five more women testified about having sexual contact with him after taking Quaaludes some thirty years earlier, although they’d apparently never got around to bringing charges. The trial court saw nothing unfairly prejudicial about this, sniffing that it was “not required to sanitize the trial to eliminate all unpleasant facts.”

Cosby was convicted and, at age 80, sentenced to three to ten years of prison. He was denied bail pending appeal.

The Pennsylvania Supremes overturned Cosby’s conviction in a decision by Justice David Wecht, already known as “Pennsylvania’s Great Dissenter” (apparently a polite version of Justice Scalia).  The Court held 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.”

There was no question that the purpose of D.A. Castor’s non-prosecution guarantee was to force Cosby to testify in Constand’s lawsuit:

“Cosby was forced to sit for four depositions. That he did not—and could not— choose to remain silent is apparent from the record. When Cosby attempted to decline to answer certain questions about Constand, Constand’s attorneys obtained a ruling from the civil trial judge forcing Cosby to answer. Most significantly, Cosby, having maintained his innocence in all matters and having been advised by a number of attorneys, provided critical evidence of his recurring history of supplying women with central nervous system depressants before engaging in (allegedly unwanted) sexual activity with them—the very assertion that undergirded Constand’s criminal complaint. . . .

“Cosby reasonably relied upon the Commonwealth’s decision for approximately ten years. When he announced his declination decision on behalf of the Commonwealth, District Attorney Castor knew that Cosby would be forced to testify based upon the Commonwealth’s assurances. Knowing that he induced Cosby’s reliance, and that his decision not to prosecute was designed to do just that, D.A. Castor made no attempt in 2005 or in any of the ten years that followed to remedy any misperception or to stop Cosby from openly and detrimentally relying upon that decision.”

The Court rejected the dissent’s argument that the remedy was simply to suppress Cosby’s deposition testimony and subject him to a third trial:

“It was not only the deposition testimony that harmed Cosby. As a practical matter, the moment that Cosby was charged criminally, he was harmed: all that he had forfeited earlier, and the consequences of that forfeiture in the civil case, were for naught. This was, as the [concurrence and dissent] itself characterizes it, an unconstitutional ‘coercive bait-and-switch.’”

“Here, only full enforcement of the decision not to prosecute can satisfy the fundamental demands of due process. . . . The discretion vested in our Commonwealth’s prosecutors, however vast, does not mean that its exercise is free of the constraints of due process. 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.

“For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.” Cosby had served three years in prison.

Here’s Bill Cosby as he should be remembered:

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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