What Cosby’s Release Reveals About the Justice System

On Wednesday, jaws all over America collectively dropped when disgraced actor and comedian Bill Cosby walked out of prison a free man, just three years after being found guilty on three counts of aggravated indecent assault. The surprise ruling raises a lot of questions about how the legal system works and, perhaps more pointedly, who it works for.

So what happened?

It’s complicated.

The court majority ruled that prosecutors dropped the ball by ignoring an old promise that Cosby wouldn’t be charged.

In 2005, the district attorney in Montgomery County, Pennsylvania, was a man named Bruce L. Castor Jr. Cosby’s history of sexual assault and misconduct was not yet a widely discussed topic in the American mainstream, but Cosby was facing legal challenges from his victims. Nevertheless, Castor held a press conference, saying he’d decided against charging Cosby.

Then Cosby sat for depositions in another lawsuit from Andrea Constand, the woman whose accusations would eventually send him to jail. During those depositions, Cosby admitted to drugging women with quaaludes before having sex with them. Cosby settled Constand’s claims for $3.38 million in 2006, but then a subsequent district attorney reversed Castor’s decision and decided to charge Cosby after all.

Prosecutors in Cosby’s trials used his confessions in the deposition as part of their case. While the first trial ended in a hung jury, Cosby was found guilty on all three counts in the second.

But now, the Pennsylvania Supreme Court has determined that while Cosby’s guilt may not be in question, his rights were violated. “We hold 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,” wrote Justice David Norman Wecht.

This raises a lot of questions. One big one: Why did Castor say he wasn’t going to charge Cosby back in 2005?

Castor says was trying to keep Cosby from pleading the Fifth, figuring (correctly) that the entertainer would be willing to testify in depositions if he didn’t have the threat of prison hanging over his head. Castor would later testify that while he believed Cosby had indeed assaulted Constand, he didn’t think she’d be able to prove her case in court, so he told Cosby he wouldn’t be charged as a way of trying to secure a settlement for her.

It’s an unusual tactic, but Castor is known for legal tapdancing. He was one of former President Donald Trump’s lawyers in this year’s impeachment trial.

Another valid question is whether Castor’s press conference actually serves as a binding legal agreement — the sort that can get a prison sentence thrown out. It wasn’t put in writing, and neither Constand nor her legal team were aware of any such deal. Cosby’s lawyers had tried to argue the press conference was binding in 2018, but the trial judge was unimpressed and threw that line of reasoning out. However, the state Supreme Court apparently feels otherwise.

So what’s all this mean?

Let’s start with what it doesn’t mean. It doesn’t mean Cosby is innocent, morally or even legally. Though Cosby has always denied the dozens of accusations against him, the jury found that he was guilty beyond a reasonable doubt.

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All this means is that Cosby can’t be prosecuted for the matter.

Justice Wecht wrote an interesting note, acknowledging that while it’s important for society to punish wrongdoing, it’s even more important that we ensure that “the constitutional rights of the people are vindicated.”

Maybe. But it’s telling which inmates are afforded this high-minded treatment and which aren’t.

Consider, as just one example, the case of Corey Johnson. Johnson was executed in January for a 1992 gang killing that left seven men dead. The U.S. Supreme Court denied Johnson’s legal team’s emergency application for a stay of execution so they could present evidence that their client was intellectually disabled. Executing the intellectually disabled is unconstitutional, but the Court didn’t even bother to look at the evidence and Johnson’s execution was carried out. He died at 11:34 on January 14. Johnson’s lawyers, Donald P. Salzman and Ronald J. Tabak released a statement noting that “the clemency process failed to play its historic role as a safeguard against violations of due process and the rule of law.”

Johnson’s guilt was not in doubt. His constitutional rights certainly were. But former gang members can’t afford White House-caliber legal teams and round-the clock pressure on courts to take another look at the case. Justice Wecht’s concern for the constitutional rights of the accused might make sense if it were evenly applied to all, but it’s not and nobody seriously believes that it is. Corey Johnson wasn’t even the first man suspected of intellectual disabilities to be executed by the federal government in a five-week span.

Due process and the rule of law are important. The district attorney did bungle Cosby’s case, and creating a precedent in which DA’s can play fast and loose with the rules based on their hunches is dangerous. It’s just unfortunate that such bungles and hunches seem to tilt away from society’s poor and marginalized, and towards the wealthy and powerful.

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