The seven justices who reversed Bill Cosby conviction this week spent months debating whether he had a secret agreement with a prosecutor that tainted his 2018 criminal sexual assault conviction.
In the end, Pennsylvania’s highest court ruled that a district attorney had induced Bill Cosby to give incriminating testimony in 2005 for a lawsuit, with the promise that no criminal charges would be filed. Then, a decade later, another prosecutor used it against him — a fundamental violation of his Fifth Amendment rights. “America’s Dad” walked out of prison Wednesday and won’t face any further trials in the case.
The public outcry over Bill Cosby’s sudden release three years into a potential 10-year sentence was swift, with #MeToo activists worried it would have a chilling effect on survivors. And lawyers for another high-profile man convicted of sexual assault, Harvey Weinstein, praised the decision.
But criminal law experts believe the court acted reasonably in finding that a prosecutor’s word should be honored, even by a successor. One called the ruling a wakeup call for prosecutors who might try to quietly resolve a case without a paper trail, or make a deal over a handshake.
“It probably would have been much better lawyering to get it all in writing,” Loyola Law School professor Laurie Levenson, a former prosecutor, said of the hidden deal in the Cosby case. “It’s a teachable moment, I think, for prosecutors across the nation. It’s a big lesson.”
Levenson, too, fears the quick takeaway is that “another celebrity gets away with a crime.” More deeply, she said, the case illustrates the need for legal agreements that are “open, fair and transparent.”
“For survivors of sexual assault, it’s got to be another incredibly upsetting, frustrating moment,” she said. “So (there are) good lessons for prosecutors and hard lessons for survivors.”
The court heard arguments in December. On Wednesday, a majority of the justices, 6-1, found Cosby’s case should be overturned. But the justices split 4-2 on whether he should go free or face a third trial. The two dissenting justices questioned if Cosby had ever really been promised immunity — or whether an abuse of power led to former Montgomery County prosecutor Bruce Castor’s “odd and ever-shifting explanations” of his promise to Cosby.
They urged their colleagues to condemn the tactics, lest others follow suit and make promises that later entrap defendants who agree to talk.
“We should reject Castor’s misguided notion outright and declare that district attorneys do not possess this effective pardon power,” Justice Kevin Dougherty wrote in a partial dissent.
