There is a silver lining in Cosby’s freedom

On Wednesday, the Supreme Court of Pennsylvania — the highest court in that Commonwealth — issued a decision reversing Bill Cosby’s criminal conviction for the aggravated assault of Andrea Constand at his residence in 2004. At age 83, Cosby was immediately released from prison, having served three years thus far in a maximum-security facility outside of Philadelphia.  

Many people are duly outraged by this decision, but it bears a silver lining that has implications that go well beyond Cosby’s case. 

A six-judge majority of the seven-member court was upset that then-Montgomery County, Pa., district attorney Bruce Castor (who later served as Donald J. Trump’s counsel in his second impeachment proceedings) had publicly declined to bring charges against Cosby in 2005. That decision was purportedly based on perceived difficulties with Constand’s credibility and the lack of corroborating forensic evidence or admissible testimony from other alleged victims. 

Although Cosby received no formal immunity agreement from Castor, the court reasoned that the state’s decision not to prosecute Cosby in 2005 opened him up to having to testify under oath in four depositions in Constand’s civil case against him for money damages. During those depositions, he explained his romantic interest in Constand and his prior use of quaaludes to seduce women, among other incriminating matters. According to the majority, Castor’s “successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking,” using his “sworn inculpatory testimony” from the civil lawsuit at the subsequent criminal trial. This, the court held, violated Cosby’s constitutional rights. 

Because the district attorney had closed the door on criminal charges, the court reasoned, Cosby was effectively unable to claim the Fifth Amendment privilege against self-incrimination, which provides that no person “shall be compelled in any criminal case to be a witness against himself.” In Kastigar v. United States, the U.S. Supreme Court held in 1972 that the Fifth Amendment only protects a witness from disclosing information that he “reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Because Castor backed off the prosecution, the theory goes, Cosby’s Fifth Amendment privilege was less robust. 

The dissenting judge would have deferred to the trial court, which had refused to credit Castor’s public statement that he “declines to authorize the filing of criminal charges in connection with this matter” as binding on anyone, absent a written immunity agreement. In effect, the judge wrote, the majority held that prosecutors can impliedly confer immunity from prosecution without formally doing so — effectively striking the balance of any ambiguity in the defendant’s favor. 

Unlike countless other Black and Brown men in the United States (who are 5.9 times as likely to be incarcerated than white Americans), Cosby no doubt had excellent counsel — the best that money can buy. Given the severity of these crimes and the fact that the district attorney was replaceable in the next election, Cosby could have declined to testify in the civil depositions absent a written immunity agreement. In that event, Constand might have moved to compel the testimony, teeing up in the civil case the question of whether Castor’s public statement functioned as de facto immunity from prosecution. Possibly, Cosby’s legal team decided it was worth having him talk to avoid the negative inference that the civil jury might take from his refusal to testify. In 2006, Cosby paid Constand $3.4 million to settle the civil lawsuit. 

In part, the court’s decision comes as a shock because Constand’s experience with the famous actor and comedian was so horrific. Having consumed “three blue pills” that Cosby offered to “‘help take the edge off,’” the court recounts, she wound up “physically incapable of stopping Cosby or of telling him to stop.”

The majority did not hold that the evidence was insufficient to convict Cosby or that he was in any way innocent. He was released on a procedural technicality — but an important one that exists to protect regular people from bullying by those with the immense power of enforcing the criminal laws.

A 2020 study found that from 1989 to 2019, 54 percent of wrongful criminal convictions were due to official misconduct by police or prosecutors, such as witness tampering and fabricating or concealing evidence. In drug cases, Black defendants were more likely to be subject to police misconduct than white defendants — 47 to 22 percent, respectively. For murder cases, the differential was 78 to 64 percent. Although there is no central repository keeping track of these statistics, experts estimate that the wrongful convictions of innocent people are 4.1 percent in death penalty cases and approximately 2 percent for non-death penalty cases. The same study found that only 4 percent of prosecutors were disciplined in any way for misconduct that led to wrongful convictions. For police officers, that number was 19 percent. 

In this case, the court reasoned, the 14th Amendment’s right to due process — that is, Cosby’s right to a fair hearing before the government can take his liberty away — was violated by his prosecution under the circumstances of Castor’s public statement. The court further reckoned that because “prosecutors are vested with such ‘tremendous’ discretion and authority, our law has long recognized the special weight that must be accorded to their assurances,” thereby “oblig[ing] courts to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” 

It is far from clear that the Pennsylvania Supreme Court struck the proper balance between Cosby’s rights and responsibilities and the responsibilities of prosecutors in this case. But in a dangerous era of unaccountable government — one that stretches from the Oval Office to the halls of Congress to Minneapolis police precincts — it’s difficult to unyieldingly condemn this court for heaving individual constitutional rights in our system of limited government.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter and Instagram @kimwehle.