Bill Cosby has been released from prison. It’s a decision that is already being criticized by victims of sexual crimes and the public at large, but attorneys canvassed by The Hollywood Reporter say while it may not be popular, it is legally sound.
To be clear, Pennsylvania’s Supreme Court did not make this decision based on Cosby’s guilt or innocence. The opinion centers on former Montgomery County District Attorney Bruce Castor’s promise that he wouldn’t prosecute Cosby, which he made so Cosby wouldn’t plead the fifth in Andrea Constand’s 2005 civil suit. In a deposition, which was unsealed in 2016 following a motion from the Associated Press, Cosby discussed giving Constand Benadryl and admitted to giving quaaludes to other women with whom he wanted to have sex. (His attorneys later argued he misunderstood the question about quaaludes, and Cosby continues to deny any wrongdoing. Multiple civil suits are ongoing.)
Castor’s successors, first Risa Vetri Ferman and later Kevin Steele, decided to reopen the matter after that deposition testimony became public and ultimately filed charges against Cosby. After multiple failed efforts to avert a trial, a 2017 mistrial, a second trial in 2018 that ended in a conviction of aggravated indecent assault and nearly three years in prison, Pennsylvania’s high court has agreed with Cosby that his due process rights were violated. Cosby, now 83, had been sentenced to three to 10 years.
“[W]e 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,” states the decision, which is embedded below. “The impact of the due process violation here is vast. The remedy must match that impact. … He must be discharged, and any future prosecution on these particular charges must be barred. We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled.”
Criminal defense attorney Blair Berk underscored the constitutional concerns. “The reason the court found that ‘the impact of the due process violation here is vast’ is because the DA’s office determined the case should not be criminally prosecuted, told Cosby he would not be prosecuted, induced him to waive his 5th Amendment rights and participate in the civil case, and then a new DA made the politically opportune decision to effectively say, ‘Just Kidding!’ and prosecute him anyway,” Berk says.
Public defender turned entertainment litigator Shawn Holley of Kinsella Weitzman also tells THR it’s the right decision. “Though likely unpopular, the Pennsylvania Supreme Court’s decision to overturn Mr. Cosby’s conviction was the correct one,” she says. “It is a matter of due process and fundamental fairness that the agreement between Mr. Cosby and the District Attorney’s Office should have been honored. For the trial court to have disregarded that agreement, in its fervor to ‘go after’ Mr. Cosby, was wrong and a clear violation of basic principles of the law: that agreements must be respected and promises kept.”
Several of the attorneys discussed how those who criticize the outcome may be quick to characterize this as a technicality, including former federal prosecutor Laurie Levenson, who now leads Loyola Law School’s wrongful conviction clinic. “People will see this as Cosby getting off on a technicality, but what the conviction is being reversed on is legal grounds,” she says. “There are rules in bringing these prosecutions. They can’t use what he said under a promise of immunity.”
Adds Berk, “Overturning this conviction was not based on a ‘technicality’ as many will too quickly claim, but instead clearly based on the Pennsylvania Supreme Court’s affirmation that a critical underpinning of our system of justice in the United States is that every citizen, even those who are famous or infamous, is entitled to be treated fairly and receive fundamental due process when accused of a crime.”
The state’s high court emphasized that a prosecutor’s word carries real weight, a defendant ought to be able to rely on it, and the court is obligated to hold them to it. That a new DA felt differently about Cosby’s situation, or disagreed that Castor’s promise was binding, is immaterial. “Here, only full enforcement of the decision not to prosecute can satisfy the fundamental demands of due process,” states the decision. “Anything less under these circumstances would permit the Commonwealth to extract incriminating evidence from a defendant who relies upon the elected prosecutor’s words, actions, and intent, and then use that evidence against that defendant with impunity.”
The opinion reinforces that a “changing of the guard” can’t undo an unconditional, public charging decision. “A contrary result would be patently untenable,” it states. “It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”
Criminal defense attorney Drew Findling agrees with the analysis. “Those of us that are constitutionalists have been waiting for this reversal to send a message,” he says. “This is a reassurance that we cannot attack the very fabric of our Constitution when it comes to the criminal justice system, which is that there is due process for all.”
Critics of the decision are saying it feels like a failure of the legal system. “At the end of the day, rulings like this mean survivors of sexual abuse will be less willing to step forward, afraid that the legal system is stacked against them,” said attorney Beth Fegan, who specializes in matters involving sexual harassment and abuse, in a statement. “I hope that this judicial breakdown will empower victims’ advocates to bring change to the laws that prohibit survivors from holding sexual predators accountable.”
Former sex crimes prosecutor Priya Sopori, now a litigation partner at Greenberg Glusker, says this decision shouldn’t discourage victims. “I hope it says nothing to victims of sexual crimes,” she says. “I hope this decision says more about the willingness of a Court to protect the individual rights that are fundamental to our democracy and our system of criminal procedure as we know it — despite the horrendous conduct on which a conviction is based.”
While theoretically the Commonwealth of Pennsylvania could appeal to the U.S. Supreme Court, the lawyers consulted by THR say it’s unlikely. “We can’t deny that SCOTUS has jurisdiction here, but the fact that this involves a high-profile celebrity, the testimony of multiple victims, and at the center of which is conduct from over 15 years ago, may create more baggage than SCOTUS would wish to unpack at this time,” says Sopori.
“I think it ends here,” says Levenson. “He’s 83 years old. He’s done a couple years. I think, overall, the legacy of Bill Cosby is going to be tarnished despite the reversal of the conviction. He can’t go back to being ‘America’s dad.’”
Cosby’s current representatives haven’t responded to a request for comment, but his former attorney Tom Mesereau was eager to. “It’s a great day for the Cosby family and a great day for justice,” Mesereau tells THR. “This was the most unfair jury trial of my career.”
Mesereau, who led Cosby’s defense in his second trial, praised the Pennsylvania Supreme Court’s “tremendous reputation for courage and independence” and says he hopes this sends a message to those working in the criminal justice system. “We all deserve due process and the right to a fair trial no matter who we are or what we’re charged with,” he says. “You can’t deny anyone a fair trial because of social movements, or because of their politics, or because of their race. Everyone deserves the same treatment and everyone must have due process.”
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