Bill Cosby’s Sex Assault Convictions Tossed By Pennsylvania Supreme Court

Bill Cosby’s 2018 sexual assault convictions were overturned by the Pennsylvania Supreme Court on June 30, 2021, and the charges were ordered dismissed. The 83-year-old Cosby was released after two years and nine months in custody, hours after the court released its ruling.

Bill Cosby is a world renowned comedian, actor, and author. He first came to national prominence when from 1965 to 1968 he co-starred with Robert Culp in the I Spy prime time television series. From 1984 to 1992 he starred in the The Cosby Show that was the number one rated television series for five years. In 2014 TV Guide named Cosby’s character in the show, Cliff Huxtable, as the “Greatest TV Dad” in American television history.

Cosby was a long-time supporter of Temple University which was his alma mater. In 2002 Cosby met Andrea Constand when she was the Director of Basketball Operations at Temple University. Over the next several years she saw Cosby on a number of social occasions. In January 2004 she was at Cosby’s home to discuss her leaving her job at Temple and returning to Canada.

After the January visit to Cosby’s home, Constand continued to talk over the telephone with him about issues involving Temple University athletics. In March 2004 Cosby invited Constand to dinner at a Philadelphia restaurant. They had an amiable dinner and afterward Cosby invited her to his home. She accepted and after spending some time there she left. Months later, after she had moved back to Canada, Constand and Cosby talked on the phone “mostly about an upcoming Toronto performance that he had scheduled. Cosby invited Constand and her family to the show, which especially excited Constand’s mother, who had attended two of Cosby’s other performances and who brought a gift for Cosby to the show.”

In early January 2005 Constand contacted the police in Canada after she told her mother that when she visited Cosby’s house in January 2004, he gave her wine and several blue pills that he said would “help take the edge off.” She claimed that after they had been talking for a while she began to get sleepy and “Cosby guided her to a sofa in another room so that she could lie down.” When she awakened in the early morning “she discovered that her pants were unzipped and that her bra was raised and out of place.” Cosby was up and he offered her “a muffin and a cup of tea. .. She took a sip of the tea, broke off a piece of the muffin, and left.”

Constand told the Canadian police that her mother urged her to file a report about the alleged incident. After filing the report Constand called Cosby at home. He was out, but returned her call the next day. With her mother on the line. Constand talked about the January 2004 visit to his house, but she was unable to get Cosby to admit anything improper happened. After she left the call Cosby specifically told her mother that he and her daughter did not have sexual intercourse. Neither Constand nor her mother told Cosby a police report had been filed accusing him of sexual assault.

Constand later telephoned Cosby again — with him still unaware she had filed a police report — and recorded the conversation. Cosby said nothing incriminating, while he “offered to continue assisting Constand if she still desired to work in sports broadcasting.” Cosby said they could meet in person to talk if she wanted.

Constand’s report was referred from Canada to the Philadelphia Police Department, which referred it to the Cheltenham Police Department, where Cosby lived. On January 24, 2005, Montgomery County, Pennsylvania District Attorney Bruce Caster issued a press release that Cosby was under investigation for sexual assault.

Cosby fully cooperated with the police investigation, and he gave a police statement.

Cosby’s home was searched by the police and no evidence was found that corroborated Constand’s allegations.

Caster found difficulties with Constand’s credibility as a witness. Those concerns included that she continued to socialize in person and on the phone with Cosby after the alleged incident; there were many inconsistencies in her various statements to investigators prior to, and again after Cosby’s home was searched; she waited a year to file a complaint and then only did so at the urging of her mother; her recording of multiple phone calls with Cosby could be interpreted as part of a blackmail scheme by her and her mother; and, before she contacted the police in Canada, she contacted civil attorneys in Philadelphia for the purpose of pursuing financial compensation in a lawsuit against Cosby.

The police investigation found no corroborating witness or forensic evidence supporting Constand’s allegations.

Castor concluded from the investigation 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.”

Castor informed Cosby’s lawyer, and issued a press release in February 2005 that stated: “District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter.” Castor knew that because of his non-prosecution decision, “Cosby would no longer be able in a civil lawsuit to invoke his Fifth Amendment privilege against self-incrimination for fear that his statements could later be used against him by the Commonwealth.”

Less than a month later, Constand filed a federal civil rights lawsuit against Cosby in March.

Cosby’s attorney’s thought he was protected from prosecution by Castor’s action, so he could be forced to provide testimony in Constand’s civil suit under “penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination. 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.”

Cosby agreed to settle Constand’s lawsuit on the understanding the terms of the settlement and the records of the case would be sealed. “However, following a media request, the federal judge who presided over the civil suit unsealed the records in 2015.” The settlement for $3.38 million and Cosby’s depositions were publicly disclosed.

It was revealed from the unsealed records that “At deposition, Cosby testified that he developed a romantic interest in Constand as soon as he met her, but did not reveal his feelings. He acknowledged that he always initiated the in-person meetings and visits to his home. He also stated that he engaged in consensual sexual activity with Constand on three occasions, including the January 2004 incident. Throughout the depositions, Cosby identified the pills that he provided to Constand in 2004 as Benadryl.”

Risa Vetri Ferman succeeded Castor as Montgomery County DA. Upon release of Cosby’s civil deposition, Ferman reopened the criminal investigation of Constand’s allegations.

When Castor learned Ferman reopened Cosby’s criminal case, he “sent her an email, to which he attached his February 17, 2005 press release, stating the following:

“Dear Risa,

… 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.

… 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.

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.

…[T]he 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”

Ferman disregarded Castor’s explanation of the legal consequences of his decision in 2005 not to prosecute Cosby. She pressed forward with the criminal case against Cosby, that was primarily based on his depositions in Constand’s civil case. Thus, “Nearly a decade after D.A. Castor’s public decision not to prosecute Cosby, the Commonwealth charged Cosby with three counts of aggravated indecent assault12stemming from the January 2004 incident with Constand in Cosby’s Cheltenham residence. On January 11, 2016, Cosby filed a petition for a writ of habeas corpus seeking, inter alia, dismissal of the charges based upon the former D.A. Castor’s purported promise—made in his representative capacity on behalf of the Commonwealth—that Cosby would not be prosecuted.”

In Feb. 2016 the trial court conducted a hearing on Cosby’s petition. Ultimately, “the trial court denied the motion, finding that then-D.A. Castor never, in fact, reached an agreement with Cosby, or even promised Cosby that the Commonwealth would not prosecute him for assaulting Constand.”

In May 2016 the judge decided after a preliminary hearing that all the prosecution’s charges could proceed to trial.

The judge subsequently denied Cosby “Motion to Suppress the Contents of his Deposition Testimony.”

In December 2016 the trial judge denied Cosby’s motion for a change of venue, “but agreed that the jury should be selected from a different county.”

In February 2017 granted the prosecution’s motion to introduce the bad character testimony of other alleged past victims of Cosby, but limited it to one woman.

On June 17, 2017 the judge declared a mistrial after the jury failed to reach a unanimous verdict after seven days of deliberations.

Prior to Cosby’s second trial the prosecution made a motion to admit bad character evidence from additional women who alleged Cosby committed acts of sexual abuse. Although there was no change in circumstances other than the jury was unable to reach a unanimous verdict, the judge granted the prosecution’s motion and increased the number of prior bad acts witnesses to five — from the one allowed in the first trial.

At the conclusion of Cosby’s second trial the jury convicted him on April 26, 2018 of all three counts of aggravated indecent assault. He was 80 years old.

On September 25, 2018 Cosby was sentenced to 3 to 10 years in prison by Judge Steven O’Neill, who also ordered that Cosby be classified as a “sexually violent predator” pursuant to the Sex Offender Registration and Notification Act. O’Neill denied Cosby bail pending his appeal, and ordered him to be taken immediately into custody.

Judge O’Neill denied Cosby’s post-trial motions.

Cosby appealed, and on December 10, 2019 a Superior Court panel unanimously affirmed his convictions and sentence.

Cosby was denied parole after he refused to participate in a sex offender treatment program.

Cosby then filed a petition with the Pennsylvania Supreme Court, which on June 23, 2020 granted him an appeal limited to two issues:

(1) Where allegations of uncharged misconduct involving sexual contact with five women (and a de facto sixth) and the use of Quaaludes were admitted at trial through the women’s live testimony and [Cosby’s] civil deposition testimony…did the Panel err in affirming the admission of this evidence?

(2) Where: (a) [District Attorney Castor] agreed that [Cosby] would not be prosecuted in order to force [Cosby’s] testimony at a deposition in [Constand’s] civil action; (b) [the district attorney] issued a formal public statement reflecting that agreement; and (c) [Cosby] reasonably relied upon those oral and written statements by providing deposition testimony in the civil action, thus forfeiting his constitutional right against self-incrimination, did the Panel err in affirming the trial court’s decision to allow not only the prosecution of [Cosby] but the admission of [Cosby’s] civil deposition testimony?

On June 30, 2021 the Supreme Court issued is majority 4-3 ruling reversing Cosby’s convictions and ordering dismissal of his charges based on the trial court’s failure to suppress his deposition testimony. Cosby was released from prison hours after the Court’s ruling. The Court’s ruling in Pennsylvania v. William Henry Cosby, No. J-100-2020 (Penn. Sup. Ct., 6-30-2021) stated in part:

On February 17, 2005, then-District Attorney Castor announced to the public, on behalf of the Commonwealth of Pennsylvania, that he would not prosecute Cosby for any offense related to the 2004 sexual abuse that Constand alleged. [47]
…
D.A. Castor’s declination decision stood fast throughout his tenure in office. When he moved on, however, his successor decided to revive the investigation and to prosecute Cosby. Ruling upon Cosby’s challenge to this belated prosecution, the trial court concluded that the former district attorney’s promise did not constitute a binding, enforceable agreement. [48]
…
… former D.A. Castor testified that the signed press release was meant to serve as proof for a future civil judge that Cosby would not be prosecuted, thus stripping Cosby of his Fifth Amendment right not to testify. Mr. Castor emphasized that his decision was “absolute that [Cosby] never would be prosecuted.” … [50]
…
For the reasons detailed below, we hold that, 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 enforced. [52]

Prosecutors are more than mere participants in our criminal justice system. … As the Commonwealth’s representatives, prosecutors are duty-bound to pursue “equal and impartial justice,” … Their obligation is “not merely to convict,” but rather to “seek justice within the bounds of the law.” [52]
…
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. [57]
…
The answer to our query lies instead in the objectively indisputable evidence of record demonstrating D.A. Castor’s patent intent to induce Cosby’s reliance upon the non-prosecution decision. [62]
…
In that press statement, D.A. Castor explained the extent and nature of the investigation and the legal rules and principles that he considered. … He then announced that he was declining to prosecute Cosby. The decision was not conditioned in any way, shape, or form. … [62]

There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent. … [62]
…
… the due process implications arise because Cosby detrimentally relied upon the Commonwealth’s decision, which was the district attorney’s ultimate intent in issuing the press release. … [64]
…
Cosby was forced to sit for four depositions. That he did not—and could not—choose to remain silent is apparent from the record. When Cosby attempted to decline to answer certain questions about Constand, Constand’s attorneys obtained a ruling from the civil trial judge forcing Cosby to answer. [66]
…
… Had his right to remain silent not been removed by D.A. Castor’s decision, Cosby would have been at liberty to invoke that right at will. … [67]
…
These legal commandments compel only one conclusion. Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].” Id. at 1065. Cosby could not invoke that which he no longer possessed, given the Commonwealth’s assurances that he faced no risk of prosecution. … [67]

… The record establishes without contradiction that depriving Cosby of his Fifth Amendment right was D.A. Castor’s intended result. … There can be no doubt that, by choosing not to prosecute Cosby and then announcing it publicly, D.A. Castor reasonably expected Cosby to act in reliance upon his charging decision. [68-69]

Conclusion

… the discretion vested in our Commonwealth’s prosecutors, however vast, does not mean that its exercise is free of the constraints of due process. 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 … denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity. [79]

For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged. [79]

Cosby was released from prison hours after the Supreme Court issued its ruling. Cosby’s release was processed so quickly that he was wearing his prison uniform when he was released. Cosby’s friend Andrew Wyatt picked him up at the prison and said his first words after being released were: “Andrew, is this a dream?”

Cosby has said he wants to go on a speaking tour. He is developing a television show, working on a documentary, a book, and he is determined to use his own prison experience to advocate for prison reform.

Montgomery County District Attorney Kevin Steele who prosecuted Cosby was furious that his conviction was reversed and he was barred from being retried by double jeopardy. Steele insists the Supreme Court overstepped its authority by ruling DA Castor made a non-prosecution agreement that was binding on future district attorneys.

July 26, 2021
By Hans Sherrer
Justice Denied