Prosecutors are asking the US Supreme Court to review the decision that overturned Bill Cosby’s sexual assault conviction, arguing in a plea Monday that there is a danger if the press releases are treated as immunity agreements. An example can be set.
Cosby’s lawyers have long argued that he relied on a promise that he would never be charged if an accused gave damaging testimony in a civil trial in 2006. The confession was later used against him in two criminal trials.
The only written evidence of such a promise is a 2005 press release from then-prosecutor Bruce Castor, who said he did not have enough evidence to arrest Cosby.
The release included a vague “caution” that Castor would “reconsider this decision if necessary.” The parties have debated for years what this means.
“This decision, as it stands, will have far-reaching negative consequences for Montgomery County and beyond Pennsylvania. Montgomery County District Attorney Kevin Steele wrote in the petition, which seeks a Supreme Court review under the Due Process Clause of the U.S. Constitution, Which we believe the US Supreme Court can do right.
Prosecutors have also complained that the chief justice of the state’s high court misrepresented key facts of the case when he discussed the court’s decision to overturn Cosby’s sentence in a television interview.
Castor’s successor, who gathered new evidence and arrested Cosby in 2015, says it falls short of a lifetime immunity agreement. He also doubts that Castor ever made such a deal. Instead, they say Cosby had strategic reasons for making the statement rather than giving his Fifth Amendment right to remain silent, even if he “slipped” in his belligerent testimony.
However, defense lawyers say the case should never be heard because they call it a “non-prosecution agreement.”
Cosby, 84, became the first celebrity to be convicted of sexual assault in the #MeToo era when a jury in their 2018 trial found him guilty of drugging and molesting college sports administrator Andrea Constand in 2004.
He spent nearly three years in prison before the Pennsylvania Supreme Court released him in June.
Steele’s bid to revive the case is a long shot. The US Supreme Court accepts less than 1% of the petitions it receives. Legal scholars and victim advocates will be watching closely, however, to see if the court takes an interest in a high-profile #MeToo case.
Two of the court’s judges, Clarence Thomas and Brett Kavanaugh, were charged with sexual misconduct during their bitter confirmation hearing.
Appellate judges have sharply differed in view of the Cosby case. An intermediate state court upheld the sentence. Then seven judges of the Pennsylvania Supreme Court wrote three different opinions on this.
The majority found that Cosby relied on his decision not to prosecute him when he admitted to giving drugs and alcohol to young women prior to sexual encounters. The court stopped to rule out that there was such a settlement, but said that Cosby thought that — that dependence, he said, eluded his sentence.
But prosecutors call that conclusion flawed. They noted that Cosby’s attorneys strongly objected to questions of the statement rather than let him speak freely.
Cosby himself never testified about a settlement or promise. The only alleged participant to come forward is Castor, a political rival of Steele, who went on to represent President Donald Trump in his second impeachment trial. Castor said he had promised a deceased defense attorney for Cosby, and received nothing in return.
He never mentioned it to top assistant Risa Furman, who led his Cosby investigation.
She later became district attorney and reopened the case in 2015 after a federal judge stamped Cosby’s statement.
In a notable pre-trial hearing in February 2016, Castor spent hours testifying for the defense. He said he typed the press release himself after office hours, and was intended to expose lawyers, the press, and the public to its different layers of meaning.
The judge did not find him credible and sent the matter for hearing.
The Pennsylvania Supreme Court, in its June 30 decision, called Cosby’s arrest an “insult to fundamental fairness.”
Weeks later, the ruling prompted the state attorney general to dismiss charges against prison guards accused of sexually abusing female inmates, as an earlier agreement with county prosecutors had let them resign rather than face charges. .
Cosby, a staunch black actor and comedian, produced the top-ranked “Cosby Show” in the 1980s. A flurry of sexual assault allegations later destroyed his image as the “father of America” and led to a multimillion-dollar court settlement with at least eight women. But Constand’s only case was one that led to criminal charges.
Five of them testified for prosecutors to support Constand’s claims, a testimony that Cosby’s attorneys also challenged on appeal. However, the state’s high court declined to address the thorny issue of how many other accused can testify in criminal cases before the evidence becomes inappropriate for defense.
in a recent memoir, Constand called the decision less important than the growing support from sexual assault survivors inspired by the #MeToo movement.
“The outcome of the trial seemed strangely insignificant. It was as if the world had shifted again to something more significant,” wrote Constand in the book “The Moment.”