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He was a special defendant who got special justice


For a criminal defendant, victory on appeal is rare. A decision barring further prosecution, as the Pennsylvania Supreme Court handed down Wednesday when it vacated Bill Cosby’s conviction, is rarer still.

When celebrities or the megarich are involved, the traditional policies get thrown out the window — not just at the Montgomery County Courthouse but in every courthouse.

For Cosby, this is a huge win. For the women who have accused Cosby of actions ranging from groping to sexual assault to rape, it’s a devastating blow. For other victims of sex crimes and would-be defendants, it’s virtually meaningless. This ruling has little, if any, precedential value because nothing similar to this is likely to ever happen again.

Bill Cosby was always a special defendant, and the state Supreme Court ruling was, therefore, a special case. When celebrities or the megarich are involved, the traditional policies get thrown out the window — not just at the Montgomery County Courthouse but in every courthouse in America.

In Cosby’s case, the unusual treatment started when the Montgomery County district attorney, Bruce Castor, made a public announcement in 2005 that, after investigating allegations levelled by Andrea Constand, he wouldn’t be charging the celebrity performer. Cosby has denied all wrongdoing and has previously stated his contact with Constand was consensual.

Castor might have made his announcement for a noble reason: Given his determination that there was “insufficient” evidence to sustain charges beyond a reasonable doubt, this provided a way to compel Cosby to testify in a civil case in which Constand could receive compensation. By announcing that he wouldn’t be prosecuting the comedian, Castor denied Cosby the ability to invoke the Fifth Amendment privilege against self-incrimination when testifying in the civil suit. Cosby relied on that assurance, to his detriment.

As the court opinion stated, “Having determined that a criminal trial likely could not be won, D.A. Castor contemplated an alternative course of action that could place Constand on a path to some form of justice. He decided that a civil lawsuit for money damages was her best option.”

This is not normal. District attorneys don’t usually make decisions about whether to charge a defendant — or decline to do so — in an effort to affect the outcome of a civil case. Instead, prosecutors will seek restitution, an order in a criminal case for the defendant to pay a victim to make them whole. But that’s part of the criminal case.

Prosecutors will tell you they don’t care about civil cases. After all, they’re prosecutors; they wouldn’t have joined the DA’s office if lawsuits were their thing. But special defendants get special treatment.

It’s not always because the judge or the attorneys are starstruck or intimidated by fame. Quite the contrary: Prosecutors assigned to a celebrity case bring their A-game, knowing their careers could rise or fall with this one high-profile case. The heightened sense of security and the presence of cameras on the courthouse steps also make the jurors sit up straighter and listen harder.

Here, it seems a prosecutor felt pressure to make an out-of-the-ordinary maneuver to satisfy a public unusually attuned to a given case and demanding action. This is not necessarily injustice. It’s just … different.

When you use a different rule book, it can end up backfiring.

Based on the statements Cosby made in the civil suit, he was later charged by Castor’s successors in 2015 and convicted of three counts of aggravated indecent assault. On Wednesday, he was set free because the Supreme Court held that Castor had made an unconditional promise not to prosecute, and Cosby had relied upon that guarantee to the detriment of his constitutional right not to testify.

As the Supreme Court opinion put it, “Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.”

The court concluded that not to enforce Castor’s assurances would “violate long-cherished principles of fundamental fairness.” The court then barred any future prosecution of Cosby on these particular charges.

What the court did not do here is hold that every time a prosecutor declines to prosecute, the defendant in question is forever immune. Quite the opposite: It held that in this situation, these unique assurances induced Cosby to give up his rights.

District attorneys don’t usually make decisions about whether to charge a defendant — or decline to do so — in an effort to affect the outcome of a civil case.

That’s exactly why district attorneys almost never issue a signed press release declining to prosecute a suspect: They don’t want to jeopardize their ability to bring a case in the future.

Instead, in cases where deals are made to reduce the counts or not charge a suspect, it’s generally spelled out in excruciating detail on paper in a formal plea agreement, with the terms often read in court. In other words, they make it crystal clear what the deal is to avoid ambiguity, challenges and further court proceedings.

Castor would have done better to stick to the norms that guide prosecutors rather than make an exception for Cosby, even if, as the attorney testified, it was to help his alleged victim get some redress. In the end, special justice was injustice.

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