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Bill Cosby Wins Reversal of Sex Assault Conviction

The Pennsylvania Supreme Court was divided in clearing the comedian, with the majority finding that a prior settlement barred Bill Cosby's prosecution on a nearly decade-old charge.

HARRISBURG (CN) — Pennsylvania’s highest court tossed out Bill Cosby’s sexual assault conviction and ordered his release from prison Wednesday, finding the comedian's 2005 agreement with a prosecutor prevented him from being charged over the same conduct.

"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 enforce," Justice David Wecht wrote in the 79-page majority opinion Wednesday.

Pennsylvania officials have made no statement yet about whether they plan to appeal. The decision comes nearly three years into the 83-year-old Cosby’s sentence of 3 to 10 years stemming from his being found guilty of the drugging and assaulting Andrea Constand, whom he met through his trusteeship at Temple University where Constand was on the women’s basketball administration. 

Thirty-five years Cosby’s junior and gay, Constand said she had seen the iconic Black star as a mentor, and trusted him when he gave her pills “to take the edge off” one night when she came to him for career advice.

Soon thereafter, however, she found herself immobile as the man known to a generation as the family-minded Dr. Huxtable penetrated her with his fingers on a couch and made her touch his penis.

Constand initially reported her assault to Montgomery County authorities, only to be told by then-District Attorney Bruce Castor that her case was too weak to prosecute. She instead pursued a civil case that ended in a $3.4 million settlement. Just as the statute of limitations on the crime was set to close nearly a decade later, however, Constand's claims found new life when a federal judge unsealed Cosby's secret depositions from the civil matter.

The case by then had exploded in the national spotlight after another Black comedian, Hannibal Buress, cast doubt on Cosby's sacrosanct wholesome image, leading dozens of women to come forward with stories from over the years about being drugged and raped by Cosby. Constand was the only accuser whose claims were not too old to prosecute.

Montgomery County Judge Steven O’Neill ultimately presided over two lengthy trials of Cosby, his first having ended in a hung jury. Critical to his 2018 conviction was the 2005 deposition transcript in which Cosby admitted that he would buy quaaludes to give to women before having sex with them. O'Neill also admitted testimony from five other self-identified victims of Cosby.

But the Pennsylvania Supreme Court ruled 4-3 Wednesday that the prosecution was barred by his 2005 agreement with Castor, a lawyer who made headlines yet again this year as one half of former President Donald Trump's impeachment defense team following Trump's stoking of an insurrection at the U.S. Capitol on Jan 6.

Justice Wecht noted in the ruling Wednesday that Cosby was unable to invoke his Fifth Amendment rights against self-incrimination during deposition for Constand's civil suit because Castor had removed the threat of criminal charges.

The transcript of Cosby's deposition testimony included not only the blockbuster quaalude admission but his assertion that he gave Constand three half-pills of Benadryl. He said he did this to help her relax as she had complained about having difficulty sleeping and that afterward they had begun consensually kissing and touching each other.

On the road to trial, Judge O'Neill had ruled that any purported immunity offer from Castor was defective because a “press release, signed or not, was legally insufficient to form the basis of an enforceable promise not to prosecute.” The court had also faulted Cosby’s attorneys for failing to demand written documentation that the state had promised not to prosecute.

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O'Neill had said that Cosby showed his intentions when he gave the pills to Constand in his “own words about his use and knowledge of drugs with a depressant effect.” Because of his testimony about the effects of quaaludes, Cosby “either knew [Constand] was unconscious, or recklessly disregarded the risk that she could be,” the judge had ruled. 

The Pennsylvania Supreme Court heard Cosby's appeal in December after a unanimous panel of the Superior Court ruled against him in 2019.

“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,” Wecht wrote.

While prosecutors can employ discretion in charging decisions, Wecht added that they are “not exempt from basic principles of fundamental fairness.” 

The opinion also emphasizes that Castor did not note anywhere in his public announcement of the decision not to prosecute Cosby that such decision could be reevaluated at a future date or could be overturned by a future district attorney.

“There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent,” Wecht wrote.

Angela Rose, whose group Promoting Awareness Victim Empowerment stood by Constand in the courtroom, called Wednesday's reversal "a travesty of justice."

"This is a devastating blow for survivors of sexual violence, which is already the most underreported crime," Rose said in a statement. "Our hearts are with Andrea Constand and other survivors who bravely testified in court about the harm that they have endured because of this man. PAVE is sending our support to all survivors who are triggered by this news. Please know that you are not alone and we are here for you." 

Cosby’s lawyer Jennifer Bonjean did not immediately return a request for comment Wednesday.

At trial, Cosby portrayed himself as nearly blind and unable to walk without an aid. Prosecutors nevertheless sought a sentence of up to 10 years in prison, the maximum for each of the counts against him, based on his showing “no remorse” for his actions.

Three justices dissented to the reversal of Cosby's conviction Wednesday. In one of the opinions, Justice Thomas Saylor said he did not read the 2005 promise to Cosby as permanent.

“I read the operative language — ‘District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter’ — as a conventional public announcement of a present exercise of prosecutorial discretion by the temporary occupant of the elected office of district attorney that would in no way be binding upon his own future decision-making processes, let alone those of his successor,” Saylor wrote.

Chief Justice Max Baer meanwhile joined a partial dissent by Justice Kevin Dougherty that calls it true that the district attorney’s office cannot pull a “bait-and-switch,” but says that Castor nevertheless lacked the authority to make a perpetual agreement not to prosecute.

“If district attorneys had the power to dole out irrevocable get-out-of-jail-free cards at will and without any judicial oversight, it would invite a host of abuses,” Dougherty wrote. “And it would ‘effectively assign pardon power to District Attorneys,’ something this Court has already rejected as unconstitutional.”

Dougherty also disagreed that the court has a duty to overturn Cosby's conviction because he detrimentally relied on Castor’s inducement.

“We can return him to the position he enjoyed prior to being forced to surrender his Fifth Amendment right against self-incrimination by simply suppressing the evidence derived from the civil depositions at which he testified,” Dougherty argued. “We should not use Castor’s ‘blunder’ to place Cosby in a better position than he otherwise would have been in by forever barring his prosecution.”

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