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Cosby Walks Free
Bill Cosby is a free man today, and cannot be prosecuted again in Pennsylvania for the same crime. That does not mean he is on track to career or reputational rehabilitation. Far from it; the Pennsylvania Supreme Court opinion that freed him from prison repeated the truly ugly facts of his admissions in the civil case, which admissions now free him from prison. Whisky Tango Foxtrot?* Here, let the judge explain in plain language [footnotes converted to endnotes, emphasis added]:
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM HENRY COSBY JR., Appellant
OPINION JUSTICE WECHT DECIDED: June 30, 2021
In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004 at his Cheltenham residence. Along with his top deputy prosecutor and experienced detectives, District Attorney Castor thoroughly investigated Constand’s claim. In evaluating the likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly. D.A. Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence. The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby confessed, “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.”[1]
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. [2] Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.
D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s reliance upon D.A. Castor’s decisionCosby’s sworn inculpatory testimonywere then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial. We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth. [3]
[ . . . ]
The decision to charge, or not to charge, a defendant can be conditioned, modified, or revoked at the discretion of the prosecutor.
However, 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. See, e.g., State v. Myers, 513 S.E.2d 676, 682 n.1 (W.Va. 1998) (explaining that “any change in the duly elected prosecutor does not affect the standard of responsibility for the office”). 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.
Justices Todd, Donohue and Mundy join the opinion.
Justice Dougherty files a concurring and dissenting opinion in which Chief Justice Baer joins.
Justice Saylor files a dissenting opinion.
[1] Notes of Testimony (“N.T.”), Habeas Corpus Hearing, 2/2/2016, at 60.
[2] Id. at 63.
[3] As we discuss in more detail below, at Cosby’s trial, the trial court permitted the Commonwealth to call five witnesses who testified that Cosby had engaged in similar sexually abusive patterns with each of them. We granted allowance of appeal here as well to consider the admissibility of that prior bad act evidence pursuant to Pa.R.E. 404(b). However, because our decision on the Castor declination issue disposes of this appeal, we do not address the Rule 404(b) claim.
Cosby was tried, the jury deadlocked causing a mistrial, he was retried and convicted in 2018 with a sentence of 3 to 10 years. He was denied parole as he refused to take part in a sex offender course, maintaining innocence. So, he ultimately served the minimum sentence. I do not take from the statement of facts and procedures in the case that Bill Cosby is vindicated, an innocent man freed. I appreciate his costar and apparent long-time friend’s loyalty but do not think many are ready to join her.
FINALLY!!!! A terrible wrong is being righted- a miscarriage of justice is corrected! pic.twitter.com/NrGUdwr23c
— Phylicia Rashad (@PhyliciaRashad) June 30, 2021
Here is the thing to take from this case: good intentions must not trump our Constitution, and prosecutors can make very serious errors that result in justice denied to one side or another. Here the original prosecutor made a calculated decision to strip Cosby of his Fifth Amendment rights by declining criminal prosecution, hoping to force his testimony against himself in a civil trial for money damages. This worked. Then a new prosecutor decided to make a career off Cosby, the Constitution be hanged, and a trial judge went along with this. So, the highest court in the state had to clean up the mess.
* What Transpired beFore? It is worth briefly reviewing the backstory on Bill Cosby.
Bill Cosby was a brilliant young stand-up comic in the 1960s, with a series of clean LPs (long-playing records) sold to the public and a second “blue” set for Las Vegas and other appropriate adult venues. I learned to love Cosby’s comedy from his albums Why Is There Air? (1965) and 200 M.P.H. (1968). The first had stories about his childhood (kids get hurt playing, cover up the blood, then run home and say “look Ma,” and college athletics “do not touch, certain parts of your body, while you are on the football field. The second had a routine about the young star buying a Ferrari. “I need a car that goes 200 MPH.” The bit ends with him telling the salesman to “take the keys, and give them to Steve McQueen.” These are pieces of my family’s early memories, part of the sound track of my early youth.
We did not have television, so I missed both I Spy and the longer running animated Fat Albert and the Cosby Kids. I did catch bits of The Cosby Show, which Bill Cosby controlled and deliberately designed to counter-program the Hollywood and New York negative/patronizing portrayal of black men and black families. In his creation, the husband was not a fool, an oaf, and the kids were not running the household. Nor were the kids Ho’s and Pimps in training, contrary to what white executive-dominated corporations were selling behind the black faces of Rap/Hip Hop.
Then Cosby really stepped in it. He went from the non-threatening positive storytelling of The Cosby Show to speaking truth to real power. Howard Kurtz laid this out in 2014: “Why liberals are turning on Bill Cosby over rape allegations.”
let’s flash back to 2004, when Cosby disrupted a celebration—a Constitutional Hall gala marking the 50th anniversary of Brown v. Board of Ed—with some blunt talk about the black lower class:
“People marched and were hit in the face with rocks to get an education, and now you have these knuckleheads walking around…. The lower economic people are not holding up their end of the deal. These people are not parenting.”
[…]
“These are people going around stealing Coca-Cola. People getting shot in the back of the head over a piece of pound cake and then we run out and we are outraged, ‘The cops shouldn’t have shot him.’ What the hell was he doing with the pound cake in his hand?”
Here is Cosby in longer form at Howard University in 1996:
Kurtz went on to name an early opponent whose name you will recognize, and whose agenda has always been obvious:
Village Voice piece by Ta-Nehisi Coates calling Cosby “condescending”: “When the Coz came to Constitution Hall last week, he was one up on his audience. He had no solutions, and unlike his audience, he knew it.”
Many on the left, it’s fair to say, did not embrace Cosby’s indictment, as indeed it seemed to undercut the case against racism. Four years later, Coates wrote an Atlantic piece subtitled “The audacity of Bill Cosby’s black conservatism”:
“Cosby’s rhetoric played well in black barbershops, churches, and backyard barbecues, where a unique brand of conservatism still runs strong. Outsiders may have heard haranguing in Cosby’s language and tone. But much of black America heard instead the possibility of changing their communities without having to wait on the consciences and attention spans of policy makers who might not have their interests at heart. Shortly after Cosby took his Pound Cake message on the road, I wrote an article denouncing him as an elitist. When my father, a former Black Panther, read it, he upbraided me for attacking what he saw as a message of black empowerment. Cosby’s argument has resonated with the black mainstream for just that reason….
“But Cosby often pits the rhetoric of personal responsibility against the legitimate claims of American citizens for their rights. He chides activists for pushing to reform the criminal-justice system, despite solid evidence that the criminal-justice system needs reform. His historical amnesia—his assertion that many of the problems that pervade black America are of a recent vintage—is simply wrong, as is his contention that today’s young African Americans are somehow weaker, that they’ve dropped the ball.”
It was a young black stand-up comic in 2014 who finally said the quiet part out loud. Hannibal Buress launching a 2-minute bit on Cosby as rapist from a Philadelphia stage.
Yeah, but you rape women, Bill Cosby, so turn the crazy down a couple notches. I’ve done this bit on stage and people think I’m making it up…. when you leave here, Google “Bill Cosby rape.” That sh** has more results than “Hannibal Buress.”
What preceded the “yeah but” was an expression of resentment that Bill Cosby, who came out of the ‘hood, would dare publicly call other black people to personal responsibility and so threaten the grievance industry gravy train.
AND. Bill Cosby, who could have had all the beautiful women he wanted fully conscious, if somewhat intoxicated, apparently wanted to exercise chemically aided dominance. All his remarks, once the allegations started surfacing, seemed not quite straightforward. Whatever the true truth of the matter, Bill Cosby will never get a career and a piece of his reputation back unless he does a full show trial self-criticism. That will likely not suffice, but Cosby has no path to secular “redemption” that does not include complete self-abnegation, complete renunciation of self-reliance, and street-level accountability, replaced with the full BLM approved mantra.
Published in Law
Yeah. This is going to be another mess. I can see both sides of the argument.
What I want to happen going forward, is if a woman is a victim to speak out.
I actually think the statute of limitations on he said/she said crimes should be less time.
Cosby has a problem, no doubt. My wife treats sex criminals in her psychological practice. There are a lot. But our justice system needs integrity now more than ever, and much more of it too!
But I have questions still. Did Cosby lose his protection once he started speaking out powerfully about aspects of the black community? Or was that just, who are you to lecture us, you pervert! Which is also understandable.
Is there something else behind this newfound adherence to judicial restraint? I want to see it applied to paler non-billionaires.
As reprehensible as what Bill Cosby did, and admitted to, his due process rights were clearly violated. The quoted language in the post clearly lays it out. Although is is hard to call Bill Cosby a victim of #MeToo, civil rights were a victim — and that should concern us all. Had this decision not come out this way, there would be a real uncorrected problem of due process in Pennsylvania
Both. One reinforces the other.
If Mike Tyson can be convicted of rape and go back to his celebrity life, why not Cosby?
There are two technical issues. The first was the immunity deal for a deposition in a civil lawsuit. The second was that it was a verbal agreement, rather than a written agreement, and then there is this:
Referring to the original announcement of immunity.
“They should at least add three words — ‘at this time,'” he said. “If you add that qualifier, which wasn’t done in Cosby’s case, you should be good to go,” Oliver said.
You still would not your adult daughter to accept an invitation for cocktails at the Cosby home.
A younger angrier black comic, led the charge. His objection to Cosby suggests that, as with Weinstein, Everybody Knew. If so, that is especially disturbing.
The restraint comes four years after the trial judge ignored the obvious constitutional problem twice, in the 2017 trial and 2018 retrial.
I’ll revise and extend my post, having dug back into the backstory.
I agree that Cosby is not “vindicated, an innocent man freed.” Nonetheless Phylicia Rashad’s tweet is 100% correct: What the prosecutor did was “a terrible wrong” and a “miscarriage of justice.” (She may have continued to assert his actual innocence elsewhere, but this tweed does not do that.)
The justices wrote:
Another miscarriage of justice is that the DAs who welshed on their predecessor’s immunity deal still have their law licenses, let alone their jobs. I don’t think “tactical error” accurately describes that conduct.
Even if you don’t have an ethical objection to what they did and think that the court’s “fundmental fairness” and “integrity” are just an attempt to put lipstick on a pig, the “functionality” part of the opinion is compelling. Plea bargains and immunity deals are the grease that keeps the wheels of Just ‘Tis rolling. If even a small percentage of defendants won’t plead in exchange for immunity on some charges because DAs are untrustworthy, things would get much worse very fast.
I don’t think the decision has anything to do with Crosby’s guilt or innocence. I think it has everything to do with the idea that a person subject to the laws of the United States and the State of Pennsylvania who is protected from criminal prosecution by Government Official “A,” under the terms of a deal granting essential immunity for same in exchange for the defendant incriminating himself in a civil trial, not being exposed by Government Official “B” who comes along after the fact and decides to rewrite the rules of the game so that the defendant, who waived his 5th amendment rights in the deal with GO “A” is now criminally prosecuted by GO “B.” Were I ever in that situation (unlikely in most circumstances, and highly unlikely in the sort of circumstances that ensnared Crosby), I’d want that logic to work for me.
Re: Weinstein, it’s flat out untrue that “everybody knew”. I’ve known plenty of people who have sued him, hated him, would have been happy to kill him, but not one of them knew about Harvey Weinstein and rape. Of course, now nobody wants to admit they weren’t in the know.
Cosby’s a slightly different case. For decades he’s been trailed by allegations and hushed-up settlements, and some of them did break into the newspapers. We knew about the infidelity. We didn’t know about the date rape drugs.
It’s true that Cosby was more of a target because of his speaking out against aspects of Black life and culture. But he’s the one who loaded the pistol and handed it over to his enemies.
What a damn shame. I look at old episodes of I Spy and am torn between my admiration for who he was then, and my knowledge of what he became later.
I think he’s a loathesome guy. But if there’s an object lesson here, it’s that government officials shouldn’t play fast and loose with the law in order to placate political movements, on any side, or at any time.
Exactly so.
I think it was just bad timing. The same MeToo fever got Al Frankin kicked out of office. Those things would not happen today. The Gov. of Virginia got away with wearing a Klan outfit and Gov of NY looks to be getting away with killing 15,000 grannies.
potestatem super omnia
With over 50 accusers from over the years, is it really flat out untrue, or is it fairer to conclude that everyone assumed Weinstein’s behavior was within the bounds of Tinsel Town, the land of the casting couch?
More than fifty women have now come forward with allegations against Harvey Weinstein, since The New York Times and The New Yorker each published their industry-shattering investigations into his alleged history of sexual misconduct. The allegations against Weinstein include sexual assault, harassment and unwanted advances, and date back over the past three decades.
Yup and Yup.
I reflect this in my extensive revision.
Except that the 2014 accusations, the original decisions, and the civil case, all predate #MeToo and the Trump presidency.
But they don’t predate his calling Black Culture to account for its dysfunction. It’s a shame that he couldn’t have been a more effective weapon/tool in that fight, but I don’t think they were going to listen to anyone who didn’t reinforce and validate their sickness.
Clifford, we’re talking about two separate things here. These accusations weren’t public, and most of them weren’t made even privately until the rape cases appeared in the press. For decades, he was smart enough to focus his predation on actresses at European film festivals. As he got old, he got careless, convinced his fearsome lawyers could intimidate anyone from going public. A handful of people knew but even long time staffers at Miramax–and nobody hated Harvey more–never heard this.
No, it hasn’t been acceptable Tinsel Town behavior. Generally, it gets someone fired. Being head of your own company is a definite asset.
George Carlin, Richard Pryor, Chappelle, and dozens of other younger comedians claimed Cosby as their inspiration, and attributed their success to the shoulders up he provided for them.
At the time when Cosby demanded that African Americans whose lives weren’t working should take responsibility for their lives, I was a progressive. But I thought what he was saying was both necessary and obvious.
His criminal activities took him down. Several technicalities got him freed. The most overwhelming of the technicalities was that back in the 1970’s, there was no internet. A woman who accepted a drink from Cosby only to find out he’d used the date rape drug and proceeded to rape her did not have any chat rooms available to compare notes with other women victims of his criminal deeds. So by the time he was able to be brought up on charges, the statute of limitations for many of his victims to prosecute him was long past.
This recent court decision is just another loophole in the process that kept him from paying the real debt he owed society. I wonder if he used to avoid playing comedy clubs in the Carolinas, where IIRC the statute of limitations for rape in decades longer than elsewhere.
I always hate hearing, “He was an attractive successful man and could have any woman he wanted,” as some type of proof that a man should not be considered guilty of sexual accusations. Ted Bundy was attractive too. But being blessed by the gods with good lucks and charm doesn’t guarantee that an individual isn’t a criminal.
I wouldn’t call the decision a “loophole”. Yes, he should have been investigated and prosecuted in a timely basis proximate to his crimes. But that wasn’t done for reasons that are not atypical for these and other cases. D.A. Castor when examining the case he had to present at trial made a decision which is likely justified by the outcome of Cosby’s first trial: do you lose and make it impossible for the victim to get any form of redress, or do you take an action which removes Cosby’s ability to assert a 5th Amendment right in the civil case? In one @dougwatt’s comment (#5 above) it was suggested that a caveat should have been added to the non-prosecution deal: “at this time”. But that would not have deprived Cosby of asserting his 5th Amendment rights in the civil case because he had a cognizable claim that he was not free from being prosecuted over anything that he said.
The government cannot make a deal affecting a fundamental right and then just later ignore it. We are all protected by this”loophole”. We don’t have to believe Cosby is innocent as a result, but we all need to be grateful that a court is upholding our rights.
I don’t think the recent court decision is a loophole in the process at all. I think the recent court decision is an acknowledgment that there was a series of events which deprived a person of a right he’s entitled to as an American.
An official of the state made a deal that he would not prosecute Cosby in a criminal case because there simply wasn’t enough evidence, and he didn’t think there would be a conviction. Cosby was therefore required to waive his fifth-amendment right, and to “talk” in the concurrent civil case, during which he made several incriminating statements, while understanding that they would not be used against him in the criminal case, because that had been closed.
The next state official reversed the deal, and prosecuted Crosby, using, among other things, his waived fifth-amendment testimony as evidence. If one looked at this from a cynic’s perspective, one might think that the whole set-up was to force Crosby to incriminate himself outside of a criminal trial which didn’t have enough evidence to prosecute him, and then to use the evidence he provided against himself, to prosecute him and put him in jail. More likely, though, it’s that variation of Hanlon’s razor which attributes that which cannot be set down to malice to a politician’s desire for votes and aggregation of power.
It’s pretty clear that Cosby’s a louse. And I expect it would have been possible to “get” him in a legally defensible way. So the problem here is that the second district attorney, and the prosecutors played fast-and-loose with the law. It isn’t the recent court decision.
The closing words were “give them to George Wallace“.
Roper: So now you’d give the Devil benefit of law?
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And, when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and, if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Mr. Cosby could still be prosecuted on a criminal charge if a woman who was not involved in the first prosecution, and the first civil complaint comes forward with a credible rape accusation.
We all know that our justice system isn’t perfect; no system can be. It’s going to produce the “wrong” result sometimes, and this just happens to be one of the instances where we know about it. But it is better that the mistakes, when they happen, let the guilty go free, rather than punishing the innocent.
In that way, this situation reminds me of the O.J. Simpson case. It seems pretty clear that the system failed us in that case and allowed a murderer to walk free. But when you look at the details, and you see how badly the prosecution bungled things, it’s hard to deny that the jury — even if they believed Simpson guilty, which at least some of them did — could not convict. It wasn’t the jury’s fault; it was the D.A.’s fault, much as it was with Cosby.
As wrong as it might seem that Simpsons and Cosby go free, cases like this at least show that our judiciary is serious about due process. You never know when that might work in your favor.
At least in Pennsylvania, it appears the statute of limitations on rape is twelve years.
Another, to me at least, unfair aspect of the trial was the second prosecutor’s use of testimony from women as to Cosby’s conduct that was not charged. Five witnesses other than the complainant were permitted to testify as to “prior bad acts” by Cosby and the testimony was very prejudicial.
I imagine you are quite right. Many people ‘knew’ but certainly not everyone. I put it in quotes because we all are capable of being willfully ignorant. So in retrospect they ‘knew’ but at the time they didn’t want to know. It would be a very inconvenient thing to know.
I cite below a picture that’s worth a thousand words.
Does Oprah ‘know’? Does the starlet know?
With someone famous and powerful, there is also the contamination of people going to party and getting in over their heads. “I was drunk” or “I was high” is now used as a reason to say one was raped, even when at the time, the act was consensual. I am not saying that was the case here, per say, because to be honest, I just don’t have enough information I can trust. We have seen, however, a movement to say that rape is any sex act that a woman defines as rape, regardless of her consent at the time. That is the standard in 2021.
To mention Weinstein, I have to ask of any actress “You are going to meet a man, alone, in his hotel room. What, precisely did you think was up, anyway?”. I mean, come on. Men abusing power to have sex with women is a story that predates history. It happens all the time. The Women are also buying something with that transaction. It is wrong, but it happens, and it will keep happening and we will never stop it.
So, I find it difficult to believe that there were not some women who wanted to party with the Cos and things either went sideways, or years later they decided that it went sideways, or even it became a way to make more money. That does not mean there are not real victims, as I said, I don’t have the real facts.
According to this story, he was confronted by Brad Pitt over his treatment of Paltrow back in 1995. https://people.com/movies/inside-story-how-brad-pitt-threatened-harvey-weinstein-with-a-missouri-whooping-after-gwyneth-paltrow-incident/
Now this was a crude advance not rape. But his reckless behavior started a long time ago.
I think most of the books in my bookcase were written by good guys: A couple were not. In any case, every one of those authors says things both true and false.
Cosby may be a reprehensible character. Did he say some true things? Yes. Should we ignore them, or deny them, because he’s a scuzball? No.
No one is perfect. Bill Cosby was a groundbreaking, trailblazing wonderful example of and hero to people of the African-American community and, for that matter, every community…until he wasn’t. Now all that can be said is the guy is a pervert. He was tried unfairly, but he was also guilty as hell. Thanks for the post @cliffordbrown.
Assuming the alleged act falls within the statute if limitations, I would agree, but the claims made against Cosby were way beyond the s of l, except for the one prosecuted, which had been filed just days before the very generous 12-year s of l would have expired.