From [HERE] Pennsylvania’s highest court tossed out former showcase black Bill Cosby’s sexual assault conviction and ordered his release from prison Wednesday, finding the comedian’s 2005 agreement with a prosecutor prevented him from being charged over the same conduct.

“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 enforce,” Justice David Wecht wrote in the 79-page majority opinion Wednesday.

Pennsylvania officials have made no statement yet about whether they plan to appeal. The decision comes nearly three years into the 83-year-old Cosby’s sentence of 3 to 10 years stemming from his being found guilty of the drugging and assaulting Andrea Constand, whom he met through his trusteeship at Temple University where Constand was on the women’s basketball administration. 

Cosby’s conviction was based on his testimony in a civil case in 2005. At that time prosecutors forced Cosby to testify about incriminating information in the civil case after the government promised not to prosecute him, thereby removing his 5th Amendment right of self incrimination (the 5th Amendment right of self incrimination no longer exists where the government promises to never prosecute- also known as a grant of full use immunity).

Nevertheless, for unknown [stupidity aka authoritarianism, racism white supremacy] reasons, the prosecutor’s successors did not believe they were bound by the office’s promise not to ever prosecute and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s reliance upon the previous DA’s decision-Cosby’s sworn inculpatory testimony- were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial.

The court stated,

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.”

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

With regard to the reason the DA’s office renigged on its promise not to prosecute Cosby the former DA Bruce Castor wrote an email to his successor Risa Vetri Ferman (now a judge, a RWS promotion), after he learned that she had re-opened the case. The letter, which was included in the court’s opinion, was attached to a 2005 press release stating the government would never prosecute Cosby, stated as follows;

Dear Risa,

I certainly know better than to believe what I read in the newspaper, and I have witnessed first hand your legal acumen. So you almost certainly know this already. I’m writing to you just in case you might have forgotten what we did with Cosby back in 2005. Attached is my opinion from then. Once we decided that the chances of prevailing in a criminal case were too remote to make an arrest, I concluded that the best way to achieve justice was to create an atmosphere where [Constand] would have the best chance of prevailing in a civil suit against Cosby. With the agreement of [Attorney] Phillips and [Constand’s] lawyers, I wrote the attached as the ONLY comment I would make while the civil case was pending. Again, with the agreement of the defense lawyer and [Constand’s] lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath. [Attorney Phillips] was speaking for Cosby’s side at the time, but he was in contact with Cosby’s civil lawyers who did not deal with me directly that I recall. I only discovered today that [Attorney Phillips] had died. But those lawyers representing [Constand] civilly, whose names I did not remember until I saw them in recent media accounts, were part of this agreement because they wanted to make Cosby testify. I believed at the time that they thought making him testify would solidify their civil case, but the only way to do that was for us (the Commonwealth) to promise not to prosecute him. So in effect, that is what I did. I never made an important decision without discussing it with you during your tenure as First Assistant.

Knowing the above, I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression. I cannot believe any state judge would allow that deposition into evidence, nor anything derived therefrom. In fact, that was the specific intent of all parties involved including the Commonwealth and the plaintiff’s lawyers.

Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally. That is why I have publicly suggested looking for lies in the deposition as an alternative now that we have learned of all these other victims we did not know about at the time we had made the go, no-go decision on arresting Cosby. I publicly suggested that the DA in California might try a common plan scheme or design case using [Constand’s] case as part of the res gestate in their case. Because I knew Montgomery County could not prosecute Cosby for a sexual offense, if the deposition was needed to do so. But I thought the DA in California might have a shot because I would not have the power to bind another state’s prosecutor. Some of this, of course, is my opinion and using Cosby’s deposition in the CA case, might be a stretch, but one thing is fact: the Commonwealth, defense, and civil plaintiff’s lawyers were all in the agreement that the attached decision from me stripped Cosby of this Fifth Amendment privilege against self-incrimination, forcing him to be deposed. That led to Cosby paying [Constand] a lot of money, a large percentage of which went to her lawyers on a contingent fee basis. In my opinion, those facts will render Cosby’s deposition inadmissible in any prosecution in Montgomery County for the incident that occurred in January 2004 in Cheltenham Township.

Bruce

As explained by the Court, “Despite her predecessor’s concerns, D.A. Ferman and the investigators pressed forward, reopening the criminal case against Cosby. Members of the prosecutorial team traveled to Canada and met with Constand, asking her to cooperate with their efforts to prosecute Cosby, even though she had specifically agreed not to do so as part of the civil settlement. Investigators also began to identify, locate, and interview other women that had claimed to have been assaulted by Cosby.“ [MORE]

Pennsylvania officials have made no statement yet about whether they plan to appeal. The decision comes nearly three years into the 83-year-old Cosby’s sentence of 3 to 10 years stemming from his being found guilty of the drugging and assaulting Andrea Constand, whom he met through his trusteeship at Temple University where Constand was on the women’s basketball administration.

Montgomery County Judge Steven O’Neill ultimately presided over two lengthy trials of Cosby, his first having ended in a hung jury. Critical to his 2018 conviction was the 2005 deposition transcript in which Cosby admitted that he would buy quaaludes to give to women before having sex with them. O’Neill also admitted testimony from five other self-identified victims of Cosby.

But the Pennsylvania Supreme Court ruled 4-3 Wednesday that the prosecution was barred by his 2005 agreement with Castor.

Justice Wecht noted in the ruling Wednesday that Cosby was unable to invoke his Fifth Amendment rights against self-incrimination during deposition for Constand’s civil suit because Castor had removed the threat of criminal charges.

The transcript of Cosby’s deposition testimony included not only the blockbuster quaalude admission but his assertion that he gave Constand three half-pills of Benadryl. He said he did this to help her relax as she had complained about having difficulty sleeping and that afterward they had begun consensually kissing and touching each other.

On the road to trial, Judge O’Neill had ruled that any purported immunity offer from Castor was defective because a “press release, signed or not, was legally insufficient to form the basis of an enforceable promise not to prosecute.” The court had also faulted Cosby’s attorneys for failing to demand written documentation that the state had promised not to prosecute.

O’Neill had said that Cosby showed his intentions when he gave the pills to Constand in his “own words about his use and knowledge of drugs with a depressant effect.” Because of his testimony about the effects of quaaludes, Cosby “either knew [Constand] was unconscious, or recklessly disregarded the risk that she could be,” the judge had ruled. 

The Pennsylvania Supreme Court heard Cosby’s appeal in December after a unanimous panel of the Superior Court ruled against him in 2019.

“The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees,” Wecht wrote.

While prosecutors can employ discretion in charging decisions, Wecht added that they are “not exempt from basic principles of fundamental fairness.” 

The opinion also emphasizes that Castor did not note anywhere in his public announcement of the decision not to prosecute Cosby that such decision could be reevaluated at a future date or could be overturned by a future district attorney.

“There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent,” Wecht wrote.

The Pennsylvania Supreme Court heard Cosby’s appeal in December after a unanimous panel of the Superior Court ruled against him in 2019.

“The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees,” Wecht wrote.

While prosecutors can employ discretion in charging decisions, Wecht added that they are “not exempt from basic principles of fundamental fairness.” 

The opinion also emphasizes that Castor did not note anywhere in his public announcement of the decision not to prosecute Cosby that such decision could be reevaluated at a future date or could be overturned by a future district attorney.

“There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent,” Wecht wrote.