Commonwealth of Pennsylvania v. William Henry Cosby, Jr., No. J-100-2020.  June 30, 2021.  

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A Life of Unprecedented Firsts and Widespread Public Acclaim. Bill Cosby enjoyed a career marked by achievements in comedy, in acting, and in education.  Following success as a stand up comedian, he was the first African American to star in a nighttime drama, I Spy.  Later, the long-running Cosby Show, in which he played a sometimes perplexed, but always lovable, sweater-wearing physician, endeared him to millions.  Cosby was not infrequently referred to as “America’s Dad.”

 

Dad Would Never. Surrounded by accomplishments and accolades, the notion that Cosby was anything other than that which he appeared to be in public was unthinkable until the early years of the new millennium.

 

Very Tough Love. Theretofore relentlessly anodyne, in 2004 Cosby lambasted African Americans for what he perceived to be life limiting choices and woeful parental skills.  Notwithstanding that Cosby asserted that his intention was to proffer help, his thoughts were not well received.  

 

Very Little Love (Or So It Would Appear). That same year Cosby engaged in a personal relationship with a woman at Temple University.   Although Cosby asserted that all his activity was consensual, the woman believed that she had been drugged and sexually assaulted, and was unable to consent. 

 

Concerned about the impact that the relationship with Cosby had had on her, Andrea Constand complained to local police. 

 

No Criminal Case. On review of Constand’s complaint and conduct, as well as a statement by Cosby, the District Attorney for Montgomery County, Pennsylvania, concluded in 2005 that the available evidence was not sufficient to ensure a conviction.

 

But Perhaps a Successful Civil Suit. By his own account, the District Attorney believed that while he could not be certain of a criminal conviction against Cosby, he could facilitate a civil suit for money damages for Constand if he declared he would not prosecute Cosby.  If there were no possibility of prosecution, Cosby in turn would not be able to avail himself of his Fifth Amendment right against self-incrimination.  

 

Telling the World. With the idea of removing any Fifth Amendment protections from Cosby in a civil proceeding, the District Attorney issued a press release describing to the public his decision that his office would not prosecute Bill Cosby based on the investigation and the evidence then known.  

 

No Compliance with Statute or Protocols. The sole promise made by the District Attorney was in the press release. There was no court order of immunity sought or obtained, nor was three any writing describing any immunity conferred upon Cosby.

 

Testimony Under Oath. In later civil suits, Cosby was deposed on several occasions, during which he never asserted any Fifth Amendment privilege and during which he made statements that were self-incriminating.

 

A Decade Hence, Things Were Perhaps Not Exactly What Was Had in Mind. Ten years after the Constand complaint and the promise of non-prosecution, a new District Attorney reopened the case based on the public release by a Federal judge of Cosby’s previously sealed deposition testimony.  

 

#MeToo and #MeToo and #MeToo. As interest in Cosby’s conduct gained momentum, one woman after another disclosed that she believed that she had been drugged and sexually assaulted by Cosby.  The allegations spanned decades, some reaching back to the 1960s.  Some, but not all, of the accounts were admitted in evidence at Cosby’s second trial. 

 

A Matter of Record. Cosby was convicted of aggravated indecent assault in 2018, in a second trial following a 2016 mistrial.  

 

And Now the Reversal.  Within recent weeks Cosby’s conviction has been vacated and he has been released from prison.  

 

Justice Delayed or Justice Denied. This latest result is no doubt unthinkable to those who believed that Cosby’s conviction represented a measure of justice, however belated, not only for those who felt themselves personally victimized by Cosby, but also for those persons everywhere who have suffered sexual assault, ofttimes in decades-long silence.

 

Justice is for the Next World: In this World, There is the Law. The Supreme Court of Pennsylvania, having reviewed all the proceedings, concluded that the District Attorney’s deliberate inducement caused Cosby to forfeit his constitutionally guaranteed right against self-incrimination. Moreover, the District Attorney had no power to bind those who would succeed him.  

 

Induced and Abandoned. The appellate court concluded that the District Attorney’s inducement, in the form of a press release announcing there would be no prosecution, which was relied upon by Cosby, so offended principles of fundamental fairness, which the law considers to be the foundation for all due process, that the only way to make Cosby whole was to set aside the conviction and set Cosby free.

 

The Pennsylvania Supreme Court’s opinion was not unanimous.  Two judges concurred and dissented at once, opining that Cosby ought to be tried a third time, with any evidence introduced in error in the prior trials suppressed.  

 

One judge dissented from the result in its entirety, questioning the soundness of the court’s conclusion that the District Attorney made an unconditional promise by means of a press release.  Moreover, the Court’s speculation about the District Attorney’s intent to gull Cosby into forfeiting his Fifth Amendment rights was contrary to sound jurisprudence. 

 

Nonetheless, the dissenting judge agreed that were circumstances as the majority described them, prosecutors would have boundless capacities to trample on individuals’ constitutionally protected interests. 

 

In addition, the dissent perceived that the trial court erred in admitting evidence of prior assaults, as the evidence was unduly inflammatory, and the dissent would have been inclined to order a new trial on that basis.

 

The News May Be Bad, but the Law May Be Good.  Appellate decisions exist to refine the law.  While the release of Cosby may disappoint, the release had nothing to do with Cosby’s conduct, memorialized for all time in the opinion. 

 

The result had everything to do with the prosecutor. 

 

In this light the opinion is a clarion call to prosecutors everywhere to be prudent in their dealings with defendants, with the courts, and with the public, to be scrupulously truthful and trustworthy, and to be no larger than the office and the law allow.   

Commonwealth v Cosby (Pa. 2021). Wecht, J. for the Court

Commonwealth v Cosby (Pa 2021). Dougherty, J., Concurring and Dissenting.

Commonwealth v Cosby (Pa. 2021). Saylor, J., Dissenting.