PHILADELPHIA—Temperatures soared to near 100 degrees as actor-comedian Bill Cosby strolled out of SCI Phoenix in Montgomery County a free man, his dignity intact following a decision by the Pennsylvania Supreme Court to overturn his controversial 2018 sexual assault conviction.
Mr. Cosby has steadfastly denied the charges against him. What swayed the high court was an agreement made by him and then-Montgomery County, Penn., District Attorney Bruce Castor when the charges were filed initially in 2005. Mr. Castor, in a press release, articulated the likelihood of an unsuccessful criminal prosecution of Mr. Cosby as reason for the unusual agreement.
He foresaw difficulties with accuser Andrea Constand’s credibility as a witness. District Attorney Castor further determined that a successful criminal trial outcome would be frustrated because there was no corroborating forensic evidence and because testimony from other potential accusers against Mr. Cosby were likely inadmissible under laws of evidence.
The agreement, written as a press release, stipulated that Mr. Cosby would not be criminally prosecuted. Instead, he would waive his 5th amendment rights, face a civil trial and give a deposition that would be sealed. During his deposition for the civil trial, Mr. Cosby made statements related to drug use and sex with women.
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Fast forward to September 2015. The Montgomery County district attorney’s office decided to reopen the case saying the previous prosecutor’s agreement and the sealed deposition were not binding. The argument was the information in the deposition from the civil case could be used against Mr. Cosby in a criminal case. It was. That trial, which took place in 2017, ended with a deadlocked jury.
In 2018, Mr. Cosby was brought back to court by district attorney Kevin Steele, who ran for office saying he would prosecute Mr. Cosby. The comedian was found guilty of three counts of aggravated indecent assault. The case turned in 2016 when a Montgomery County judge rejected Mr. Cosby’s motion to dismiss his sex assault case, ruling that a promise from the county’s former district attorney was not legally binding and didn’t bar prosecutors from charging him.
The case was further compromised when another judge decided statements Mr. Cosby made during the deposition in his civil case could be used in the criminal trial. In that deposition, Mr. Cosby acknowledged offering drugs to women he wanted to seduce.
During his retrial in 2018, the prosecution was allowed to call five additional accusers who were unrelated to the Constand case. Mr. Cosby was convicted and received a sentence of three to 10 years in prison. He served nearly three years. He was also designated a “sexually violent predator,” a classification that would require him to register as a sex offender for the rest of his life and undergo treatment. Mr. Cosby refused to participate in court-mandated therapy for sexually violent predators. This position cost the 83-year-old possible early parole.
Standing by as his lawyers addressed the media June 30 upon his release, Mr. Cosby didn’t speak. But he did tweet later a photo of himself and wrote: “I have never changed my stance nor my story. I have always maintained my innocence. Thank you to all my fans, supporters and friends who stood by me through this ordeal. Special thanks to the Pennsylvania Supreme Court for upholding the rules of law.”
The case was fueled by the #MeToo movement, which highlighted the sexual abuse of women and the need to hold men, especially powerful men, accountable. The accusations against Mr. Cosby were that he drugged and molested Ms. Constand at his home in Montgomery County in 2004. Ms. Constand at the time was employed at Temple University, where Mr. Cosby was an alumnus and board member.
What also came under scrutiny was the prosecution’s use of the additional accusers in the 2018 retrial. As reported by the Philadelphia Inquirer in 2020, “Pennsylvania’s Supreme Court justices expressed skepticism over the fairness of Bill Cosby’s trial, questioning whether testimony from five women who alleged he assaulted them decades ago had unduly tainted the jury against him.”
“Though the justices did not indicate when and how they might rule on Cosby’s latest appeal, the proceedings revealed a deep apprehension on the court for a prosecutorial tactic that has become increasingly common in securing sexual-assault convictions in the #MeToo era,” the article noted.
In writing the opinion for the majority, Justice David N. Wecht ruled that a “non-prosecution agreement” with a previous prosecutor should have prevented Mr. Cosby from being charged in the case.
“There is only one remedy that can completely restore Cosby to the status quo ante. He must be discharged, and any future prosecution on these particular charges must be barred. We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled,” Justice Wecht wrote in his opinion.
“It bears repeating that D.A. Castor intended his charging decision to induce the waiver of Cosby’s fundamental constitutional right, which is why the prosecutor rendered his decision in a very public manner. Cosby reasonably relied to his detriment upon that decade-old decision when he declined to attempt to avail himself of his privilege against compulsory self-incrimination and when he provided Constand’s civil attorneys with inculpatory statements.
Under these circumstances, neither our principles of justice, nor society’s expectations, nor our sense of fair play and decency, can tolerate anything short of compelling the Montgomery County District Attorney’s Office to stand by the decision of its former elected head.”
The state Supreme Court overturned the conviction in a 6–1 decision. By a 4–3 vote, it also prohibited the future prosecution of Cosby for this alleged crime. Justices Debra Todd, Christine Donohue, and Sally Mundy joined the opinion. Justice Kevin Dougherty filed a concurring and dissenting opinion in which Chief Justice Max Baer joined. Justice Thomas Saylor filed a dissenting opinion.
Boyce Watkins, author, political analyst, and social commentator on a YouTube broadcast entitled “An all-Black Bill Cosby Conversation,” talked about the case and the outcome. “What I would say to those who maintain Cosby is not innocent is that he is not guilty as well. They didn’t let him go because they love him.
They let him go because somebody in that justice system still believes in the letter of the law and said we don’t have the right to have this man in jail. Imagine your great-grandma 80 something years old hobbling around a prison. Despite all of that, Bill Cosby said I would do my whole ten years before admitting I did anything wrong. That’s pretty gangsta.”
Attorney Tricia C.K. Hoffler, appearing on the Black News Channel with Yodit Tewolde, said, “My heart does go out to the young woman and to any woman who may have had allegations against Mr. Cosby. So my comments will not go towards whether he’s guilty or innocent, strictly the procedural issues.
The prosecutor made a deal with Bill Cosby and his attorneys. And said in exchange for not prosecuting you on these crimes, these alleged crimes, if you give testimony and don’t invoke your fifth amendment right against self-incrimination … if you forego evoking that, right, we will not prosecute you from a criminal standpoint.”
“So for the prosecutors and another set of prosecutors in that office to later say, ‘look, we don’t care about that deal. We’re going to make those statements, and we’re going to prosecute him.’ And as a result, as a result, they got a conviction. That is something that was done to the detriment of Bill Cosby,” she said.
Appearing on the same show was legal analyst and crisis manager Monique Pressley. “I have the same thing to say today that I had on December 31, 2015, the day after the charges were brought against Dr. Cosby, when political gamesmanship is taking precedent over due process and constitutional freedoms, you end up with unjust outcomes,” she said. “This is supposed to be a functioning democracy in the United States of America.
This means that every person is treated the same way under the law. And it means that when someone steps into the office of the government, in this case, the Commonwealth, it doesn’t matter that the person in the position changes; the promise was made on the part of the government. And we have to be able to rely on the promises made by prosecutors.”
In a text message to The Final Call, Philadelphia Attorney Michael Coard reiterated his belief that Mr. Cosby was guilty and “a serial sexual predator who did exactly what Andrea Constand accused him of doing. However, although the trial evidence showed he’s by no means factually innocent, it also showed he’s legally not guilty,” he said.
He cited a rule that calls for a judge “to exclude (even) relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury. When Judge Steven O’Neal allowed five other accusers to testify against Cosby regarding charged and unreported sexual assaults from nearly 40 years ago, he violated the rules.”
Stacy Brown is senior national correspondent for the National Newspaper Publishers Association’s Newswire, which includes over 200 weekly Black newspapers. There was nothing of substance to bring Mr. Cosby to trial in the first place, he argued. Mr. Brown covered the 2018 Cosby case. “Folks talk about the deposition. And I always say read the testimony for yourself because when you have bits and pieces from mainstream media, they are only trying to push a specific narrative,” he said.
“You hear all the time he admitted to drugging and raping women, and that’s not at all what that deposition was about. He was asked the question in a civil deposition about whether or not he had ever provided a woman he was interested in with certain drugs. And he said, ‘yes.’ So he was answering honestly; he didn’t say I gave them drugs to take advantage of them or to have sex with them.
“When you see what happened in that courtroom, it’s very disconcerting because you figured, ‘this guy is a billionaire and he has the best lawyers that they can do it to him? Then I have no chance.’ And you have no chance. My son has no chance. So I think people are missing the big picture here and what the (state) Supreme Court did was monumental.”
Offering his analysis, Philadelphia Attorney Robert Muhammad said, “The decision to prosecute was a bad decision. And I do think that it has something to do with the fact that this was a successful Black man that they wanted to bring him down. That’s what I believe.”
And, Attorney Muhammad added, he felt Mr. Cosby might be entitled to some compensation based on the time he served and the damage to his reputation. He seemed to agree with Atty. Hoffler, who said, “They have given Bill Cosby a cause of action and a civil cause of action to go against them. They have opened that door.”
While opinions about Mr. Cosby may be mixed, the mainstream media has focused on and attacked anyone who speaks positively about Mr. Cosby. Mr. Watkins and others came out strongly in support of Howard University’s new dean of fine arts Phylicia Rashad, who co-starred with the comedian on television in the groundbreaking and hugely popular “Cosby Show.” Ms. Rashad tweeted her support for the release of Mr. Cosby and was attacked. But Mr. Watkins declared in a podcast, millions of Black people love Ms. Rashad and Mr. Cosby. But Ms. Rashad isn’t accused of anything and has a right to her opinion, he said. It’s also interesting that the #MeToo movement, initiated by a Black woman, has largely denied the cases and plight of Black women.
Atty. Hoffler said, “I would say to women who are victims of sexual assault and sexual abuse you must speak up. Chill regarding the Cosby decision. When you have been abused you must come forward because there will never be any chance of justice against abusers.”
Mr. Cosby’s lawyers continued to profess his innocence when they spoke to reporters after his release. “We are thrilled to have Mr. Cosby home,” attorney Jennifer Bonjean told the media. “He served three years of an unjust sentence and he did it with dignity and principle.”
