Though the Supreme Court of Pennsylvania’s decision in Commonwealth vs Cosby was greeted with fury and derision, legal analysts who broke down Justice Wecht’s 79-page opinion were quick to inform us that the outcome was probably correct.
Bill Cosby, the 83-year-old American TV celebrity accused by over 50 women of drugging and raping them, had escaped any further legal consequences for his actions – and the legal system had been correct in aiding and abetting him to do so.
How It All Began
The story of how we got here – from the audacious impunity that allowed Cosby to escape the system for decades, to the heyday of the MeToo movement that brought his case to public and legal scrutiny, to Cosby’s three-year-old stint in state prison to his dramatic release earlier this month – is complex.
It begins in 2005, when Andrea Constand – the only Cosby victim who could successfully bring criminal action against him, owing to statutes of limitations and various other legal hurdles – filed a police report against Cosby for drugging and sexually assaulting her in January 2004.
After the police and the prosecutor in Montgomery County – District Attorney Bruce Castor – examined Constand’s case, including her allegations that Cosby pressured her to take three sedative pills, which caused her to slip into a semi-conscious and semi-functional state, and touched her breasts and inserted his fingers into her vagina – they reached the conclusion that Andrea Constand’s testimony would not be compelling enough to convict Bill Cosby in court.
The Fifth Amendment Comes Into Play
DA Castor (who, as an aside, went on to become Trump’s impeachment lawyer), however, went on to assert that he felt Constand was still owed justice. Devising a plan that would allow Constand to achieve some form of legal remedy, he issued a press release informing the public that he had decided not to prosecute Cosby.
This may sound counterproductive, but Castor had an ulterior motive: disabling Cosby’s fifth amendment right not to incriminate himself.
The fifth amendment – made famous in American pop culture through the catch-phrase “you have the right to remain silent; anything you say can and will be used against you in a court of law” – protects a potential defendant from being forced to say anything that could make them criminally liable. So, if Andrea Constand sued Cosby in civil court (as she subsequently went on to do), and he was asked in a deposition if he had drugged and molested her, he could “plead the Fifth” – refuse to respond on the basis that he was being essentially compelled to confess to a crime.
If, however, Castor’s press release functioned as a binding promise that the state would not criminally prosecute Cosby, then Cosby could no longer “plead the Fifth” as he was no longer under threat of criminal prosecution. Cosby would have to – and he eventually did – confess to furnishing drugs to women and being sexually involved with Constand.
It is this set of facts that haunts the decision issued by the Supreme Court this month. In 2018, when Cosby was criminally tried and charged for three counts of aggravated indecent assault stemming from the incident with Constand, he challenged the decision on the basis of Castor’s press release – arguing that it constituted a binding promise that he could never be criminally tried on the basis of his 2006 deposition testimony. While the Superior Court – Pennsylvania’s court of appeals dismissed his appeal, stating that there was no formal agreement or immunity order that promised Cosby he was immune from criminal prosecution – Cosby and his lawyers took the case to the state Supreme Court.
The critical question in front of Pennsylvania’s Supreme Court was then not one of Cosby’s innocence or guilt.
It was about the propriety of using Cosby’s deposition testimony as evidence against him in a criminal trial. Cosby only confessed, Cosby reasoned, because he believed that he no longer had his Fifth Amendment privilege. Without that promise, Cosby would have never made incriminating statements on the record – and there would have been no case for a jury to convict him in 2018. Think of it like a house of cards: removing Castor’s promise would remove Cosby’s testimony – which would then collapse the entire case.
The Court's Verdict
The Pennsylvania Supreme Court concluded that Castor’s promise to not prosecute Cosby was in fact binding. “When a prosecutor makes an unconditional promise of non-prosecution,” the court reasoned, “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.”
Thus, not only was Cosby’s deposition testimony not admissible in any trial against him, because it was only given on the basis of this binding promise not to prosecute – but, the court concluded, “any future prosecution on these particular charges must be barred”.
It’s this legal outcome – the product of twisted and unique circumstances – those legal analysts at progressive websites, including Vox, The Independent, and The Washington Post defend.
Though it is disgraceful that Cosby walks free, they argue, the court was acting to protect Cosby’s inviolable constitutional rights. Prosecutors like DA Castor hold a disproportionate weight in the criminal system – they are, in the court’s words, “administrators of justice” who are “vested with … “tremendous” discretion and authority”. Thus, the court reasoned, “special weight that must be accorded to their assurances” – and they must be held to their promises.
The court – and the defenders of its decision – weren’t necessarily wrong to reach the legal conclusion that they did (though, as Vox’s Ian Millhiser notes, the decision was badly articulated and arguably too heavy-handed in barring all further criminal action against Cosby with respect to Constand, rather than just criminal action that hinged on his 2006 testimony).
Legally, the court was right to employ the doctrine of “promissory estoppel” – when one party relies, to their detriment, on a promise that they can reasonably believe the other party made, the other party cannot renege on their promise.
From a policy perspective, too, the court’s decision was sound – prosecutorial overreach is a huge problem in the American criminal justice landscape, and holding prosecutors to their promises protects defendants from being misled by unscrupulous district attorneys into incriminating themselves and being subjected to harsh criminal penalties as a result.
But the bigger question here is not whether the one decision made by the Pennsylvania Supreme Court was correct or not.
The bigger question is the series of legal missteps, abuses of power and the broken criminal justice system that facilitated the need for this decision in the first place.
The question isn’t whether the court was right to hold District Attorney’s office in Montgomery County to its promises, but one as to how the American legal system allows gross prosecutorial overreach and misconduct in the first place.
Consider, for example, the evidence that the Castor had access to when he chose not to criminally prosecute Cosby back in 2005. In addition to Constand’s extensive testimony – which detailed how and when she had been drugged and assaulted by Cosby, as well as her conversations (some of which she recorded) confronting Cosby about the night he assaulted her, Constand also had access to recorded phone conversations with Cosby.
Castor decided not to move forward with the criminal prosecution because Constand “failed to promptly file a complaint against Cosby” and had inconsistencies in her witness account. Castor also thought Constand’s continued relationship with Cosby would render her accusation of sexual assault against him hard to believe.
Classic Example of Outdated Assumptions
All of these reasons for not proceeding with prosecuting Cosby are pretty classic examples of using outdated assumptions of the behaviour of sexual assault victims and disregarding decades of meticulous psychological, sociological and evidence-based studies of how women actually react after being sexually assaulted. Yet, there are no incentives for prosecutors to change their approach to prosecuting sexual assault cases.
Prosecutors in the United States have broad authority to prosecute cases at their sole discretion, with few mechanisms of oversight or scrutiny that can question which cases they decided to drop and which cases they decided to prosecute. This fact, combined with the fact that a district or state attorney is often an elected position in many states and a stepping stone into prestigious and political office, means that the incentive for a prosecutor to pursue a case may have less to do with justice, and more to do with both the popularity and the probability of winning a particular case.
In addition to the lack of oversight, prosecutors are often protected from sanctions or disciplinary action when they do overreach, resulting in “virtually no accountability for both state and federal prosecutors”.
It’s in this context that the Cosby decision must be understood: not whether the court should have reached a different conclusion, or if Cosby should be in prison for the crimes he has been accused of – but how justice is even achievable in a system that’s entirely controlled by actors whose incentives neither lie with providing appropriate constitutional protections to defendants or providing rehabilitative and restorative justice to survivors?
How does the court reach a decision that doesn’t ultimately reward the carceral logic of the American criminal legal system, when the decisions of prosecutors are centred more than the needs of assault survivors?
The viability of using the criminal justice system as the means towards securing justice for survivors of sexual assault has been questioned by many feminists.
Focusing on sentencing individuals misses that the criminal legal system is “not meant to prevent widespread socially sanctioned sexual harassment and violence” and that “the deeply entrenched racism, classism, genderism, xenophobia and ableism of the criminal legal system offers little support for those most vulnerable to violence, who are often criminalised within these systems”.
The Cosby decision is one more piece of evidence that it is impossible to navigate the quagmire of criminal law and achieve a just and satisfactory outcome for survivors when the system as a whole is designed only to reinforce the violence of the state and the law – and to step outside of “carceral feminism” – is our only way forward and out.
(Meghna Sridhar is a lawyer based in London. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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