BRUCE CASTOR
Most folks were understandably outraged when the 2018 aggravated indecent assault conviction against Bill Cosby was overturned by the Pennsylvania Supreme Court, and the longtime stand-up comedian, comedian, actor and author was released from prison.
The court found that a prosecutor’s — Montgomery County, PA District Attorney Bruce Castor’s — decision not to charge Cosby, 83, in an earlier case, prompted Cosby to speak freely in a lawsuit against him, the assumption being that he would not incriminate himself criminally.
The denial of protection against self-incrimination rose to the forefront of his case when a second prosecutor later used the lawsuit testimony in a criminal trial.
That testimony was key in his conviction years later.
The court’s basis for its decision was a 2005 news release by Castor in which he said that he chose not to charge Cosby because of “insufficient credible and admissible evidence.”
His preferred and ‘considered’ opinion.
The court held that Mr. Castor’s statements legally bound his successor, who resuscitated the case in 2015.
Using Mr. Cosby’s civil deposition statements, the court said, was a “coercive bait and switch.”
Cosby was convicted on three felony counts of aggravated indecent assault in 2018 of drugging and assaulting Andrea Constand in 2004, and was serving a three-to-ten-year sentence.
Upon his release, he had served nearly three years of the sentence.
Further, he had vowed to serve all ten years, rather than acknowledge any remorse over the 2004 encounter with accuser Costand.
The state Supreme Court held that Cosby cannot be retried on the same charges, as the county prosecutor’s office had promised in 2005 not to charge him.
“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,” wrote Justice David Wecht in the high court opinion.
“For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.”
Remarked Cosby spokesman Andrew Wyatt in a statement about the ruling:
“This is the justice Mr. Cosby has been fighting for.
They saw the light.
He waived his Fifth Amendment right and settled out of court.
[For more than $3 million.]
He was given a deal and had immunity.
He should have never been charged.”
Not all would agree.
Hardly.
Not by a long shot.
Eight women who previously accused Cosby of sexual assault, described being “shocked,” “stunned” and “disgusted” upon hearing the news that he was free.
Victoria Valentino:
“The anger just kept growing and growing. I’m angry at the legal system. We put our necks on the line and then the legal system yanked the rug out from under us.
We are revictimized time and time again throughout the whole judicial process.”
Kathy McKeel went so far as to allege that the famous comedian bought his way out, arguing that his money greased the wheels throughout the entire legal process.
Lil Bernard:
“Nothing can change the fact that a jury of his peers convicted him.
Nothing can change the fact that his own words convicted him.”
Lise-Lotte Lubin, who testified against Cosby at his trial, echoed those sentiments and remarked further, that she had no regrets in coming forward or testifying.
“Absolutely not, I would go back and do it again.
This man has spent two years and nine months in jail, this man has lost his entire reputation, he’s lost every bit of credibility that he’s ever had.”
Fellow accuser Janice Baker-Kinney described the “sisterhood” among the women who have come forward to accuse the comedian of assault and misconduct.
Their passions for justice are white-hot and will continue to burn brightly.
“This may be the kick-start we need for more states to get involved. We’re just pissed off, and it’s relit this fire under us. We’re all angry now. It’s only going to reignite our passions for supporting others in the same position.”
For his part, former Montgomery County, PA, District Attorney Bruce Castor felt the pressure to do some ’splainin’, in the midst of fending off a mountain of criticism from many who believe he is the reason Cosby skated.
Actually, District Attorney Kevin Steele was the prosecutor who brought the case against Cosby and violated the agreement not to charge him.
But the deal apparently in place, was cut by then-DA Castor in 2004, and according to the court, was an agreement that Cosby would not be prosecuted if he entered a deposition.
It was never put in writing.
Castor’s reasoning was somewhat convoluted.
“I made a decision not to prosecute Cosby,” he began.
“…I made that decision on behalf of the Commonwealth intending to bind the Commonwealth as a result of that, as a matter of law, he lost his ability to claim the Fifth Amendment privilege against self-incrimination when he was required to testify at the civil case and give four depositions that I understand he leveraged — or the other side there, the plaintiff leveraged into a multi-million dollar settlement. So there is no — I didn’t need any agreement from him.”
Maybe it’s me, but what???
Castor continued.
“It was the decision I made. And I did it with the specific intent of removing him from having the ability to invoke the Fifth Amendment so I could get some measure of punishment because as a criminal matter, there wasn’t enough evidence to arrest and prosecute Cosby.
There wasn’t enough evidence in 2005, and there isn’t enough evidence today.”
Castor contended that back in 2005, he had “two choices” at his disposal as it related to the Cosby case.
“I could do nothing and hope the case got better or I could try to set the board up so that civil lawyers who knew what they were doing could make a good civil settlement for the woman who complained…
I chose to do something rather than nothing.”
The Supreme Court justices, who recognized that an “unconditional promise” had been made to Cosby, raised Castor’s hackles, not to mention his ire.
Taking umbrage, Castor remarked,
“I promised on behalf of the Commonwealth not to prosecute Cosby, but that’s not an agreement.
[Cosby] doesn’t have — he gets no say in that.
I decide that.”
The Pennsylvania Supreme Court disagreed.
Overruled.
And overturned.
Barbara McQuade, a professor at the University of Michigan Law School, agreed with the state Supreme Court.
In a New York Times Opinion piece, she maintained that “a promise not to prosecute has to be kept, for all our sakes.”
“Promise,” is the omnipotent, operative word.
The court’s decision to overturn Cosby’s conviction reaffirmed the longstanding notion that due process requires the enforcement of prosecutors’ promises.
In Santobello v. New York, the U.S. Supreme Court noted that prosecutors’ promises are not limited to the plea context.
Any promise a prosecutor makes that induces reliance to the detriment of the defendant may be binding.
Here, the court merely enforced Mr. Castor’s promise.
Cosby’s actions were horrific, but protecting due process matters, regardless of the crime.
As the court stated, “Society holds a strong interest in the prosecution of crimes.
It is also true that no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.”
In other words, even righteous ends cannot justify unconstitutional means.
By promising not to prosecute Mr. Cosby, Mr. Castor essentially let him off the hook criminally, so that he could be vulnerable to civil penalties.
It is not the duty of a prosecutor to assist a victim in litigation strategy for a civil case.
Rather, a prosecutor’s duty is to use discretion responsibly to make decisions about charges.
Castor didn’t do that.
Blame him.
In the court’s view, the only just outcome was to protect Cosby’s rights by enforcing Castor’s promise.
Stinks like dead fish in a barrel.
But if the constitutional right to due process is to be protected for anybody, it must be enforced for everybody.
[Editor’s Note: This piece was written by Mr. Kaplan in July 2021.]
