The court decision that reversed the sexual assault conviction of Bill Cosby has prompted an unusual level of legal debate about the appropriate parameters of appellate review.
The Pennsylvania Supreme Court’s decision to overturn Bill Cosby’s conviction has opened an unusually vigorous debate among the legal community in that state, and beyond, with critics suggesting the justices had overstepped their bounds in reversing findings of fact embraced by the trial court.
Since being freed from prison last month, Cosby, 84, has tried to portray the decision as a full exoneration.
But the court did not find Cosby to be innocent of charges he had drugged and sexually assaulted Andrea Constand at his home outside Philadelphia in 2004.
What it found was that prosecutors had violated Cosby’s due process rights by ignoring an oral promise a prior district attorney, Bruce L. Castor Jr., says he made to Cosby in 2005, assuring him that he would be immune from prosecution in the case.
Castor said he had determined there was insufficient evidence to charge Cosby. Castor hoped, he said, that by promising immunity he would remove Cosby’s ability to cite his Fifth Amendment privilege against self-incrimination and induce him to testify in any civil suit Constand might file.
Constand did file suit, and Cosby testified, acknowledging giving quaaludes to women he wanted to have sex with. At his criminal trial more than a decade later, prosecutors entered that statement into evidence.
The Supreme Court ruled that Cosby had relied on Castor’s assurances when he provided the potentially incriminating evidence and that Castor’s successors, bound by his promise, should never have charged Cosby years later.
But critics of the decision say that, unlike two lower courts, the justices ignored compelling reasons to question whether such a promise of immunity ever existed.
“I think the court was in error and read the case incorrectly,” said Lynne M. Abraham, a former Philadelphia district attorney and judge. “The court’s decision was a terrible blow to victims and a blow to prosecutors’ ability to prosecute someone where the evidence tended to show he was a predator and when all sorts of things suggested there wasn’t a promise.”
What is more, these critics say the court overstepped its traditional bounds as an appeals tribunal in reversing the findings of fact by the Montgomery County Court of Common Pleas, the trial court that had decided no binding promise existed. Appellate courts typically do not overturn findings of fact by the trial court if they are backed by the record. They serve to examine whether lower courts correctly interpreted the law and followed the procedures to ensure a fair trial. The facts, many legal analysts argue, are best determined by the trial court, which has heard witnesses and overseen evidence in person.
“The most fundamental thing that struck me,” said Dennis McAndrews, a Pennsylvania lawyer and former prosecutor, “was they said the trial judge’s findings were supported by the record and they were bound by them and then they went off and made their own factual findings. It’s exceptional to see an appellate court go to such lengths to find their own facts.”
Several veteran Pennsylvania-based lawyers said they could not remember a Supreme Court decision that had spurred so much second-guessing. Some law experts have taken to Twitter to publish critiques of the decision.
Reaction to the ruling has been strong outside legal circles too, especially among the more than 50 other women who have accused Cosby of sexual abuse and who, because the statutes of limitations had run out, viewed the Constand case as perhaps their last shot at justice.
In the midst of it all, the chief justice of the Pennsylvania Supreme Court, Max Baer, decided to discuss the ruling on television — a rarity for judges. He defended it and called Cosby’s prosecution a “reprehensible bait and switch” by the government.
To be sure, there are lawyers who agree with him and who applaud the court’s 6-1 ruling, a notable consensus on a difficult matter. They believe it delivered a strong message about prosecutorial overreach — about district attorneys’ sticking by the promises they make, even if those promises were ill-advised. “They got it right on the due process violation because what Castor did was basically a promise,” said David Rudovsky, a defense attorney and senior fellow at University of Pennsylvania Law School.
But the “promise” remains a matter of much dispute.
Castor said that, although he believed Constand’s account, she had hurt her credibility as a complainant by waiting a year to report Cosby and by continuing to have contact with him after the alleged assault. He said he decided he could not secure a conviction, so he made the promise, he said, as a tactic to get Constand a measure of justice in the civil case.
But the promise was never written down. The prosecutor who handled the Cosby investigation with Castor, his chief deputy, Risa Vetri Ferman, said he never told her about it. Castor pointed to a news release he had issued announcing the end of the criminal investigation as evidence that an immunity agreement existed. But the news release does not mention anything about immunity. It does mention the anticipated civil case.
Daniel Filler, dean of Drexel University’s Kline School of Law, said one has to question whether the average person would have gotten the benefit of the doubt that Cosby did. “Because there is no documentation that this promise was made, only this public statement that does not track exactly with what Castor said,” he said.
Castor said he briefed one of Cosby’s lawyers at the time about his plan to offer Cosby immunity. But the lawyer, Walter Phillips, was dead by the time the promise became an issue and Cosby was criminally charged in 2015. Another of Cosby’s lawyers from the original case, John Schmitt, testified that Phillips had told him about it.
Castor said he also discussed the immunity arrangement at the time with Constand’s lawyers. The two lawyers, Dolores M. Troiani and Bebe H. Kivitz, denied that.
Given that there was no written immunity agreement, several lawyers said they found it odd that Cosby never drew attention to the promise he had secured before taking questions at his deposition in the civil case. Constand’s civil case ended in 2006 in a settlement under which she received $3.38 million. During the negotiations, court papers show that Cosby’s lawyers sought to include a provision barring her from cooperating with any future law enforcement investigation, though by Castor’s account, the lawyers had already secured immunity for their client.
Critics of the Supreme Court’s decision point to what they say are the inconsistent explanations Castor gave about what he had agreed to. When the Montgomery County District Attorney’s office reopened the investigation into Cosby, Castor alerted the office that its prosecution might be hampered by a promise he had made. Castor was at the time campaigning to regain his former post as district attorney against an opponent who later made Castor’s decision not to prosecute Cosby in 2005 an issue in the race. Castor told the office in an email that his agreement with Cosby meant that the deposition testimony could not be used against the entertainer. But he said he had not given Cosby full immunity.
“Naturally, if a prosecution could be made out without using what Cosby said, or anything derived from what Cosby said, I believed then and continue to believe that a prosecution is not precluded,” Castor wrote in the email.
A few months later in court, he testified that, actually, the promise had extended full immunity to Cosby.
The trial judge ultimately ruled in 2016 that Castor’s explanations of the agreement, and Schmitt’s corroborating testimony, were not credible.
In an interview, Castor denied he had been inconsistent and said his meaning had always been that Cosby could never be prosecuted on the Constand charges. “The only way to guarantee, to unlock the Fifth Amendment protection was to guarantee he would not be prosecuted,” he said.
He said that when he had said he was still open to prosecuting Cosby, he meant that prosecutors might be able to find evidence in the testimony about Cosby’s encounters with other women, not Constand.
In its recent ruling, the Supreme Court agreed that Castor’s descriptions of the promise were “inconsistent and equivocal,” but it held that he had been the district attorney, a powerful position, and that Cosby had a right to rely on his assurances. It emphasized the fact that, although there had been no formal agreement, Cosby had agreed to sit for four days of deposition in the Constand civil suit, a decision the justices viewed as evidence that a promise must have existed. By their reasoning, Castor’s successors were breaking that promise, however informal, and undermining his due process rights by using his deposition against Cosby.
“The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees,” the court’s majority opinion said.
In particular, the Supreme Court parsed the language of the 2005 news release in which Castor announced his decision not to prosecute Cosby. It read, in part: “The District Attorney does not intend to expound publicly on the details of his decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action. District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise.”
The trial court had read Castor’s statement as an acknowledgment that, rather than agreeing to never prosecute Cosby, Castor had retained the option of revisiting the case. That interpretation was in line with what Castor told the Philadelphia Inquirer about the news release in 2015. “I put in there that if any evidence surfaced that was admissible then I would revisit the issue,” he said.
The Supreme Court, however, held that Castor was only holding open the possibility that he might again publicly discuss the case.
Some legal analysts had thought Cosby stood a chance of overturning his conviction on different grounds. The trial court had allowed prosecutors to bring in five other women, who were not part of the case, to testify that they too had been drugged and assaulted by Cosby. Cosby’s lawyers had argued that a jury would have a difficult time looking past the testimony of the women in deciding what had happened with Constand.
To the surprise of many lawyers watching the case, the Supreme Court said it did not need to address that issue because it was moot once the jurists had decided the prosecution should not have happened because of the promise.
“The very premise that somehow this promise was made, it’s not in writing and this very rich, well-lawyered person relied upon it and it’s therefore enforceable, is crazy,” said Nancy Erika Smith, a civil rights lawyer in New Jersey. “The trial court saw Bruce Castor testify and found Bruce Castor not credible, usually that’s the end of the story.”
The Supreme Court majority argued in its decision that it had not, in fact, gone beyond its role, and had not revisited facts already decided by the trial court. It pointed out that it had joined the trial court in finding that there had been no formal agreement. Two of the justices said Castor’s explanations for his actions were “odd and ever-shifting.”
John F.X. Reilly, a former deputy district attorney in Pennsylvania’s Delaware County, said he was not persuaded.
“The majority acknowledged but overlooked a fundamental principle of appellate review,” he said, “deference to a trial court’s factual findings that are supported by the record.”
In reversing Cosby’s conviction, the Supreme Court ruled additionally that he could not be tried again on the Constand charges. Judge Baer, on television, said, unpopular or not, the decision was meant to prevent government overreach.
“Nobody is sympathetic to Bill Cosby,” he said. “That’s to protect 13 million Pennsylvanians against that kind of conduct.”
Prosecutors said they were examining the possibility of appeal.
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