Angry About the Bill Cosby Dismissal? Blame the Prosecutor

Angry About The Bill Cosby Dismissal?  Blame The Prosecutor

On June 30, 2021, the Pennsylvania Supreme Court overturned, and banned further prosecution, of Bill Cosby for Aggravated Indecent Assault (Rape) charges stemming from a January 2004 incident.  The decision has been met with outcry from his multiple accusers and activists.

To be sure: there is substantial evidence, including more than sixty (60) women who allege he sexually assaulted them, his own admission and a significant civil settlement, to suggest his conduct was both criminal and reprehensible.

To understand the dismissal of his case, it is critical to understand the conduct of the prosecutor, which included a “bait and switch” of unkept promises that ultimately led to the reversal and dismissal.

Background

Cosby was alleged to have sexually assaulted Andrea Constand in 2004 by drugging her and then engaging in sexual activity with her while she was under the influence.  In 2005 the then-District Attorney Bruce Castor reviewed the allegation and determined that the Office would not prosecute Cosby due to insufficient evidence.  He announced this decision in a press release and Constand sued Cosby.  While a defendant is normally entitled to exercise his or her Fifth Amendment privilege in a civil lawsuit where criminal charges are possible for the same conduct, Cosby was precluded from doing so because of Castor’s decision.  He was forced to testify in a deposition and made incriminating statements, admitting to drugging women before having sex with them.

In 2015, a new District Attorney reopened the investigation and Cosby was later charged.  The District Attorney sought to use Cosby’s admissions in his deposition and the Judge allowed it.  Cosby was eventually convicted and sentenced to Prison.

Appeal 

Cosby appealed the Judge’s decision to admit his deposition testimony.  He made two arguments on appeal, including the argument that the introduction of his deposition testimony was improper because Cosby reasonably relied upon the District Attorney’s public statements and representations that he would not be prosecuted prior to testifying in the deposition and it was unfair to admit the testimony.

The Pennsylvania Supreme Court agreed, writing, “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 other words:  Prosecutors have to keep their promises.

The Court then ruled that the only fair remedy was to dismiss the charges, despite dissent from some of the Judges who opined that Cosby could be re-tried without the deposition testimony admitted into evidence.

Importantly, this was a dismissal based upon procedural grounds, and not one of the Judges ruled that Cosby was actually innocent.

The Blame

There is both outrage of the dismissal of the case, as well as concern that the decision could lead to a chilling effect wherein victims of sexual assault do not report crimes to the police.

While Cosby’s victims and others have reason to be devastated, it is the direct result of the prosecutors involved in his case.

First, the decision to publicly announce the decision to forego prosecution was both unusual and unnecessary.  I have represented dozens of clients during investigations that ultimately do not lead to criminal charges.  The advice at the end of the case is always the same:  It may be “over” but its not really “over”.  New evidence can be uncovered.  A prosecutor can always change their mind.  It is for that reason that a suspect should almost always exercise their Fifth Amendment privilege unless they are compelled to make a statement.  Cosby was in the position of being compelled because of the civil suit and he could not reasonably assert his Fifth Amendment privilege because there was no possibility, at the time, of a criminal prosecution.  By publicly and privately assuring no criminal prosecution, the prosecutor enabled a “loophole” that led to the dismissal.  There was no need for this action.  The victim could have proceeded with a civil lawsuit without compelling Cosby’s testimony.

Second, the decision to use his deposition testimony in trial was a classic example of a prosecutorial overreach.  A prosecutor must always be mindful that overly aggressive conduct may lead to a conviction in the short term but result in a dismissal following appellate review.  Here, the prosecutor chose to use Cosby’s deposition testimony, despite the questionable legality of its admissibility.  Had they chose a more cautious path, they might not be in the position of being precluded from further prosecution following a dismissal of the case.

Finally, the criminal justice system should be fair to all persons charged, whether we believe they are guilty or innocent.  The Pennsylvania Supreme Court has correctly ruled that prosecutors should keep their word and that defendants can rely upon a prosecutor’s promise.  Whether Bill Cosby was guilty or innocent, he had a right to rely upon the prosecutor’s promise that he would not be prosecuted.  While the decision to make that promise was unwise, refusing to honor it was worse.

Contact Us for Help

If you or someone you know has questions about detention motions, pretrial release, or criminal charges in New Jersey, contact the attorneys at Rosenberg | Perry & Associates. We provide free consultations and are here to help. We’ve got your back. That’s what we do.