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Supreme Court passes on reinstating Cosby conviction

The case considered the progenitor of the #MeToo movement was doomed by a promise not to prosecute within a 2005 press release.  

WASHINGTON (CN) — Bill Cosby on Monday survived a long-shot appeal that pushed the the Supreme Court to revive his sexual assault conviction over a controversial immunity agreement. 

The justices offered no statements or noted dissents on the case in an order list that contains no new grants of certiorari. 

While the comic was found guilty of drugging and molesting college sports administrator Andrea Constand, his conviction was foiled over a decade-old press release from the time of he was first accused in 2005. The press release said Cosby would not be prosecuted explaining that the current evidence made a conviction unattainable, but it also said the decision could be reconsidered “should the need arise.” 

Cosby went on to settle a civil suit from Constand that year after undergoing deposition under the impression that his testimony would never be used against him. Not having invoked his Fifth Amendment right counsel or to stay silent, Cosby that he drugged Constand and had access to quaaludes to be used on young women he wanted to have sex with. Once the depositions were made public at the dawn of the #MeToo era, the investigation of him was reopened and charges were reconsidered. 

Prosecutors clung to the absence of an official and court-approved nonprosecution agreement, but the district attorney who had considered the 2005 case against Cosby too weak to prosecute testified at trial that he had orally granted Cosby transactional immunity. Cosby was convicted on three counts of aggravated indecent assault. 

After spending almost three years in prison, the Pennsylvania high court ordered Cosby released. 

Pennsylvania claimed on further appeal that the state court’s decision created a dangerous precedent by giving a press release the legal weight of an immunity agreement. Specifically, the case asked the justices if the Due Process Clause of the 14th Amendment can be used to make public announcements from prosecutors into binding promises. 

Cosby is a dangerous precedent,” Robert Falin, Montgomery County deputy district attorney, wrote in the petition for certiorari. “A prosecution announcement not to file charges should not trigger due process protections against future criminal proceedings because circumstances could change, including new incriminating statements by the accused.” 

Falin said the decision to use the supposed immunity granted in a press release could have far-reaching consequences for other cases. 

“Because it construes the federal constitution, it is poised to transform similar decisions not to prosecute into effective grants of immunity in other states,” Falin said. “At the least, it presages extensive litigation of such claims nationwide, particularly in light of the widespread media coverage this case has received.”

Cosby’s attorneys claim prosecutors had asked the court to review an issue the state high court never made. 

“In a classic strawman tactic, the Commonwealth distorts this holding, claiming that the Cosby court held that a prosecutor’s press release announcing a declination to prosecute constitutes a grant of transactional immunity,” Jennifer Bonjean, an attorney with Bonjean Law Group representing Cosby, wrote in an opposition brief. “The Pennsylvania Supreme Court made no such holding.” 

The press release, Bonjean claims, was evidence of the promise, not the actual promise as prosecutors claimed. 

“The press release was evidence of the promise — it was not the promise,” Bonjean wrote. “In fact, the Cosby court expressly stated that ‘D.A. Castor’s press release, without more, does not necessarily create a due process entitlement.’ Thus, the Commonwealth’s ‘QUESTION PRESENTED’ is simply not raised by the Cosby decision.” 

Falin and Bonjean did not respond to requests for comment following the court’s denial. 

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