The court decision freeing Bill Cosby is a train wreck. It’s also probably correct.
Bill Cosby, the disgraced comedian who was convicted of sexual assault in 2018, is no longer in prison, due to a state supreme court decision in Commonwealth v. Cosby. The circumstances that freed him involve a stunning display of prosecutorial incompetence, a divided Pennsylvania Supreme Court that split three ways on what should become of Cosby, and a long, rambling judicial opinion that is often difficult to parse. The thrust of that opinion is that, even though then-Montgomery County District Attorney Bruce Castor never reached a formal agreement with Cosby that granted him immunity from prosecution, a press release that Castor sent out in 2005 — combined with Cosby’s later, incriminating testimony in a civil lawsuit — had the same effect as a formal immunity deal. That decision — which, again, attaches a simply astonishing amount of legal weight to a 16-year-old press release — is less ridiculous than it sounds. It does not exonerate Cosby; it merely strikes down his conviction on constitutional grounds. Justice David Wecht’s majority opinion is poorly organized and, at times, quite difficult to follow. But it is rooted in basic principles of contract law that will be familiar to most first-year law students. The court owed the public, and especially victims of sexual assault, a clearer explanation of why it decided to free Cosby. Though accusations against the former entertainer came to light before the Me Too movement began, he was, as Vox’s Anna North explained, “one of the first high-profile men to face criminal consequences for sexual misconduct” since the movement gained steam. The court’s often-confounding opinion muddies this case’s place in history and may contribute to sexual assault victims’ sense that reporting the crimes against them won’t lead to justice. But that doesn’t necessarily mean the court’s decision was wrong as a matter of law. Six members of the seven-justice Pennsylvania Supreme Court agreed that Cosby’s conviction must be tossed out, although only Wecht and three other justices agreed that the state should not be allowed to retry Cosby. Sixty women accused Cosby of sexual assault, but he was ultimately convicted of assaulting just one of those women, Andrea Constand. It’s possible that some other prosecutor will pursue a case involving one of Cosby’s 59 other accusers. But, barring an unlikely intervention by the US Supreme Court, Wecht is likely to have the final word on Cosby’s conviction for assaulting Constand. That conviction is now dead, and likely to remain so. Cosby was convicted of sexually assaulting Constand after drugging her Andrea Constand is a former professional basketball player who formed a personal relationship with Cosby while she was directing Temple University’s women’s basketball program. Cosby invited her to his home, invited her family to his standup performances, and offered to help Constand launch a career in sports broadcasting. As P.R. Lockhart reported for Vox in 2018, “In 2004, Constand alleged that Cosby drugged and molested her during an incident at his home. The accusations were the subject of a civil lawsuit in 2005 and a criminal trial in 2017.” Per the suits, during a visit to Cosby’s home in 2004, Cosby convinced Constand to take three pills containing some sort of sedative (Cosby claims that the pills were Benadryl). Shortly thereafter, Constand became weak and unable to move or speak. She also started slipping in and out of consciousness. Then, while Constand was unable to tell Cosby “no” or physically attempt to stop him, he touched her breasts and inserted his fingers into her vagina. Cosby also used Constand’s hand to masturbate himself. This incident also fit a pattern. At the criminal trial where Cosby was convicted of assaulting Constand, five other women testified that Cosby had also sexually assaulted them. Several of them testified that Cosby offered to mentor them or otherwise indicated that he could help their careers. And all of them testified that he gave them drugs, alcohol, or both to prevent them from resisting when he attacked them. Prosecutors did not bring charges against Cosby until 2015, however, more than a decade after he assaulted Constand. Part of the reason is that Constand did not come forward with her allegations against Cosby until 2005, about a year after she was assaulted. But an even more significant reason is that Castor, the district attorney, did not believe he could secure a conviction if he’d brought charges against Cosby in 2005. Castor’s ill-conceived press release, and its aftermath After a month-long investigation into Constand’s allegations against Cosby, Castor decided not to bring charges. Yet, according to Wecht’s majority opinion, Castor still “contemplated an alternative course of action that could place Constand on a path to some form of justice.” That path: civil court. Under the Fifth Amendment, no one may be “ compelled in any criminal case to be a witness against himself.
