On Bill Cosby’s Get-Out-Of-Jail-Forever Card…

Bill Cosby4

The Pennsylvania State Supreme Court has overturned Bill Cosby’s sex assault conviction, and the 83-year-old comedian/Jello pudding salesman/serial rapist will be released from prison with no chance of his having to go back, according to the ruling vacating his conviction issued yesterday.

Is that justice? Well, it’s a kind of justice, but only for Cosby. Pennsylvania’s highest court overturned his conviction because a previous prosecutor had granted him immunity from prosecution in order to force the Coz to admit to some of his criminal sexual activity. Cosby could not use the Fifth Amendment nor lie without risking perjury charges, so he made several incriminating statements on the record. These should not have been used to convict him later, but a different prosecutor determined that his office was not bound by the previous deal. But it was. Because Cosby’s statements were improperly used against him, the conviction was based on inadmissible evidence. This new ruling bars any retrial in the case.

Much as Bill Cosby deserves to rot in prison, upon reading the opinion, I see no way to criticize the decision. Even bad people have to be prosecuted and convicted the right way, and Cosby, who is about as bad as one can get, was not. I’m sure there is some reason why Cosby’s lawyer wasn’t able to block the use of his client’s damning but unusable testimony before Cosby had to spend time in jail, but so far, I can’t find it.

If a sociopathic predator like Bill Cosby can be freed on the basis of an unfair trial—and he can and should be—so can and should a brutal cop like Derk Chauvin, whose trial was also unfair, though for very different reasons. We shall see how far the integrity of the justice system goes.

Nobody is going to riot over Bill Cosby going free. That, I fear, might be the critical difference.

7 thoughts on “On Bill Cosby’s Get-Out-Of-Jail-Forever Card…

  1. I’m sure there is some reason why Cosby’s lawyer wasn’t able to block the use of his client’s damning but unusable testimony before Cosby had to spend time in jail, but so far, I can’t find it.

    So it was a strategic decision to generate a basis for a successful appeal?

    • The answer is on pages 27-28

      As noted, 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. T.C.O. at 62. Instead, the trial court considered the interaction between the former district attorney and Cosby to be an incomplete and unauthorized contemplation of transactional immunity. The trial court found no authority for the “proposition that a prosecutor may unilaterally confer transactional immunity through a declaration as the sovereign.” Id. Rather, the court noted, such immunity can be conferred only upon strict compliance with Pennsylvania’s immunity statute, which is codified at 42 Pa.C.S. § 5947.14 permission from a court is a prerequisite to any offer of transactional immunity. See id. § 5947(b) (“The Attorney General or a district attorney may request an immunity order from any judge of a designated court.”). Because D.A. Castor did not seek such permission, and instead acted of his own volition, the trial court concluded that any purported immunity offer was defective, and thus invalid. Consequently, according to the trial court, the “press release, signed or not, was legally insufficient to form the basis of an enforceable promise not to prosecute.”

      lightly edited to remove the footnote.

      The trial court felt that the former prosecutor couldn’t grant immunity–verbally or with a press release. A judge had to agree.

      It continues.

      As further support for the view that no agreement was reached, nor any promise extended, the trial court noted that, in his initial statement to police, which was voluntarily provided and not under oath, Cosby did not invoke his Fifth Amendment rights. Instead, Cosby presented a narrative of a consensual sexual encounter with Constand, which he asserted again later in his depositions. “Thus,” the trial court explained, “there was nothing to indicate that [Cosby’s] cooperation would cease if a civil case were filed.” Id. at 65. Since Cosby previously had discussed the incident without invoking his right to remain silent, the court found no reason to believe that Cosby subsequently would do so in a civil case so as to necessitate the remedy that the former district attorney purported to provide in anticipation of that litigation.

      The trial court further held that, even if there was a purported grant of immunity, Cosby could not insist upon its enforcement based upon the contractual theory of promissory estoppel, because “any reliance on a press release as a grant of immunity was unreasonable.” Id. Specifically, the court noted that Cosby was represented at all times by a competent team of attorneys, but none of them “obtained [D.A.] Castor’s promise in writing or memorialized it in any way.” Id. at 65-66. The failure to demand written documentation was evidence that no promise not to prosecute was ever extended. For these reasons, the trial court found no legal basis to estop the Commonwealth from prosecuting Cosby.

      • Thanks. I missed that at the time, in part because it was obvious that Bill should rot in Hell, but what a Catch-22 ruling! What matters is only that Cosby had every reason to believe the DA, and was literally tricked into waiving his rights against self-incrimination. Talk about “Otter’s Excuse”: “Hey! You fucked up! You trusted us!” Outrageous. The judges should be disciplined.

  2. “Nobody is going to riot over Bill Cosby going free. That, I fear, might be the critical difference.”

    You fear right. I’m sure the Chief Justice of the Minnesota Supreme Court has already issued a memo to all his fellow justices and the entire appellate bench that says “Derek Chauvin stays locked up no matter what. This state needs to heal, and it can’t heal if there are more riots.”

    That said, I have very little sympathy for Derek Chauvin himself. If you end up locked up for twenty years plus for killing someone by abusing your power, plus create the optics of being a homicidal bully who just didn’t cross enough lines earlier, I have a real hard time feeling sorry for you. That said, even homicidal bullies are entitled to the same due process as everyone else. Chauvin didn’t get it, in large part because the media decided making good copy and ratings was more important than due process and activists didn’t give a damn about whether a conviction would stand up later.

    I also have no sympathy for Cosby. If you end up spending the last years of your life in prison like Henri Petain did (although for different crimes) because you drugged and raped every woman who came within your wingspan, you have forfeited any claim to sympathy. That said, even sociopaths who drug and rape are also entitled to due process, and to the honoring of any deal the government makes with them. The government does not get to promise you something to incriminate yourself, then go back on the deal.

    The fact is that there is a human desire for swift justice, and often not much interest in procedural niceties when the accused is thought of as bad enough not to deserve them. That’s why the Providence police beat Esteban Carpio until he was unrecognizable after he killed one of their own while trying to escape, and no one said boo. No one gave a damn about Carpio, he was a cop killer and a suspect in the murder of an 86yo woman. That’s why the US Marshals smashed Eric Frein in the face after he was in cuffs for assassinating a PA state trooper and no one cared. And that’s why you and I watched NYPD Blue and the Shield and are still watching Chicago PD and cheered or cheer when Andy Spiowicz beat a suspect in the interrogation room, or Vic Mackey slammed someone’s head into the corner of a dumpster, or Hank Voight twisted someone’s already broken arm demanding a confession. The thought is these are bad people and whatever they get they deserve.

    The thing is, it’s easy to forget that you could one day be on the receiving end of street justice or it could be decided that it’s politically expedient to give you a long sentence with imperfect procedure. Ironically, the same people who proclaim “black lives matter” as an article of faith don’t care much about the lives of those they target.

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