Bill Cosby ... Well, Sh*t. A Lawsplainer!

Please don't shoot the messenger!

No one at Your Wonkette is happy that Bill Cosby is getting out of prison. We are not "caping" for an alleged rapist. We are doing our damn job, which is to explain to you what happened today in the Supreme Court of Pennsylvania and why it's probably correct from a legal perspective — if not a moral one. Moreover, as much as we would dearly love to blame this fucking debacle on Trumpland lawyer Bruce Castor, it really ain't on him. Well, at least not completely.

Sorry, and thank you. Okay, ready?

Back in April of 2018, Bill Cosby was convicted of drugging and sexually assaulting former Temple basketball coach Andrea Costand. By 2018, there were dozens of accusers out there telling very similar stories of being roofied and attacked by the comedian, and the conviction seemed like a long overdue bill coming due. But in 2005, when Costand originally complained to the police, things looked different. In the pre-#MeToo era, women knew they were likely to be disbelieved if they came forward with allegations against powerful men. So, in the main, they didn't.

Back in 2005, Bruce Castor, who was then working as a prosecutor in Pennsylvania, declined to prosecute Cosby based on multiple circumstances, including the lack of alleged intercourse and Costand's friendly relationship with Cosby in the year between the assault and her police report. (Again, this is not an endorsement of the decision. It's just a recitation of the facts as they happened.)

Castor promised Cosby's lawyers, both privately and in a public press release, that Pennsylvania would never prosecute Cosby for the assault on Costand. Note that this is not the appropriate way to confer immunity under Pennsylvania law. But still, Castor's representations had the effect of depriving Cosby of the right to assert his Fifth Amendment right against self-incrimination in Costand's subsequent civil suit. Indeed, this seems to have been Castor's explicit intention, since he knew that the standard of proof in a civil suit would be lower than that needed for a criminal prosecution. And because Cosby could no longer refuse to answer questions on grounds of potential criminal jeopardy, he was forced to give highly damning testimony against himself in the civil suit, resulting in a $3.38 million judgment in Costand's favor.

Which would have been the end of the matter, except then Donald Trump broke us.

Yes, of course it's easy to blame everything on that crotch-grabbing piece of drek. But between him and Brett Kavanaugh, something fundamentally shifted with American woman, and suddenly we all decided to start talking about the poisonous shit lagoon of sexism and rape culture we'd spent our whole lives swimming in. Why, no, the water is not "fine," thanks!

With dozens of women coming forward to accuse Cosby, Pennsylvania prosecutors faced extreme pressure to re-open the case. So they made the decision that Bruce Castor's defective grant of immunity did not bind his successors. And not only did they use Cosby's testimony in the civil case to convict him, they leveraged his admission that he'd given Costand Benadryl to "relax" her to get in testimony of multiple other women who claimed they'd been roofied by Cosby, claiming it was part of a pattern of behavior.

The trial court agreed with prosecutors' interpretation, but the Pennsylvania Supreme Court just reversed, holding 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."

D.A. Castor's press release, without more, does not necessarily create a due process entitlement. Rather, 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. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby's reliance. Indeed, the most patent and obvious evidence of Cosby's reliance was his counseled decision to testify in four depositions in Constand's civil case without ever invoking his Fifth Amendment rights.

And you can believe that Cosby is a serial rapist and still understand that we cannot function if prosecutors are allowed to make representations to potential defendants and then revoke them when the political winds change. Think about all the defendants who aren't millionaires able to afford the best lawyers, relying on prosecutors' assurances that nothing divulged during plea negotiations can later be used as evidence in court. It is simply more important to protect them than to nail Bill Cosby's guilty ass.

Hard cases make bad law, and this case is really freakin' hard. Sometimes life is like that. Sorry.

[Commonwealth v. Cosby, docket]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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