On Bill Cosby

As I write this, the hot ticket news headline is Bill Cosby’s indictment being vacated by the Pennsylvania Supreme Court. And a lot of people are naturally upset. As is typical in these scenarios, though, there are plenty of people seemingly willing to act like rights either don’t exist or can just be tossed aside when they feel they should be.

First, let’s discuss the facts and details.

It is not in dispute that Bill Cosby actually drugged and sexually assaulted several women. Cosby confessed to such under deposition. A deposition that was then used against him in a criminal trial, completely going against the verbal promise of a district attorney’s office that they would not prosecute him. Basically a verbal grant of immunity a future prosecutor would then renege. That was the primary issue here.

To bring charges against someone, a prosecutor needs evidence. And without Cosby’s explicit confession, the prosecutors didn’t have anything.

With a civil suit pending and evidence for a criminal trial virtually non-existent, then-Montgomery County District Attorney Bruce Castor made a verbal promise to Cosby that he would not seek criminal charges. Acting on that promise, Cosby then openly confessed, completely jettisoning his protections against self-incrimination. The civil suit was settled out of Court and Cosby went on to live his life.

Until 2015 when a new District Attorney, Kevin Steele, filed criminal charges just days before the statute of limitations ran out after Cosby’s deposition had been unsealed by the Court. The trial consisted of little more than verbal testimony by alleged victims with Cosby’s deposition being used against him, and he was then convicted and sentenced to three to ten years in jail.

That Cosby relied on Castor’s promise to not prosecute became the central premise. Did Castor, in effect, grant Cosby immunity? And the Pennsylvania Supreme Court answered that question in the affirmative. That Cosby took his statements as a promise and gave up his Fifth Amendment protection by effectively confessing to his accusations is what led to the outcome today.

Had Castor’s original promise been kept, Cosby would never have faced a criminal trial.

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. For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged

The decision here was proper. Castor’s decision, even if not in writing, was binding on the Montgomery County District Attorney’s office and forever barred them from bringing any charges relevant to or supported by Cosby’s testimony. And it was binding because Cosby acted on his good faith belief he was being granted criminal immunity in exchange for his deposition.

That Steele then decided, several years later, to file criminal charges and use against Cosby a civil deposition obtainable only because Castor granted him immunity was improper and a violation of Cosby’s Fifth Amendment rights.

Recognizing that, the Pennsylvania Supreme Court quashed the indictment entirely, vacating his conviction, and ordering him released.

And it’s both surprising and not how many people seem to not realize WHY the Pennsylvania Supreme Court ruled the way they did. This outcome isn’t a “miscarriage of justice”, but the correction of one. A significant violation of Cosby’s Fifth Amendment rights led to his prosecution, so says the Court. And if you’re going to act like that doesn’t matter because… rape, then why the fuck should I defend your rights?

Either rights are defended unconditionally for EVERYONE or NO ONE. There is no middle ground here.