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 decisionCosby’s sworn inculpatory testimonywere 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.