Bill Cosby’s Conviction Overturned

The serial sex offender will be released from prison.

Breaking from CNN: “Bill Cosby will be released after the Supreme Court of Pennsylvania vacated his conviction and judgment of sentence, according Stacey Witalec, spokesman for Pennsylvania’s highest court.”

One imagines something rather spectacular happened to simply throw out the conviction. Updates when they’re available.

UPDATE: I was right. AP has far more detail:

Pennsylvania’s highest court overturned Bill Cosby’s sex assault conviction Wednesday after finding an agreement with a previous prosecutor prevented him from being charged in the case.

Cosby has served more than two years of a three- to 10-year sentence at a state prison near Philadelphia. He had vowed to serve all 10 years rather than acknowledge any remorse over the 2004 encounter with accuser Andrea Constand.

He was charged in late 2015, when a prosecutor armed with newly unsealed evidence — Cosby’s damaging deposition from her lawsuit — arrested him days before the 12-year statute of limitations expired.

The court said that District Attorney Kevin Steele, who made the decision to arrest Cosby, was obligated to stand by his predecessor’s promise not to charge Cosby when he later gave potentially incriminating testimony in Constand’s civil suit. There was no evidence that promise was ever put in writing.

Justice David Wecht, writing for a split court, said Cosby had relied on the former prosecutor’s decision not to charge him when he later gave potentially incriminating testimony in the Constand’s civil suit.

They said that overturning the conviction, and barring any further prosecution, “is the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system.”

This strikes me as the legally correct outcome and, indeed, one would hope Steele would face heavy sanction. Additionally, the trial judge screwed up royally:

The trial judge had allowed just one other accuser to testify at Cosby’s first trial, when the jury deadlocked. However, he then allowed five other accusers to testify at the retrial about their experiences with Cosby in the 1980s.

The Pennsylvania Supreme Court said that testimony tainted the trial, even though a lower appeals court had found it appropriate to show a signature pattern of drugging and molesting women.

I don’t see how any judge thought this was admissible.

As a matter of justice, of course, it stinks. Cosby is almost certainly guilty of multiple sexual assaults, if not rapes, and is going to be exonerated. On the other hand, he has served two years in jail that, legally speaking, he shouldn’t have.

FILED UNDER: Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. HarvardLaw92 says:

    The lower court erred in determining that Cosby’s agreement with a prior prosecutor didn’t bind the office. I remember calling that out here back when the trial was happening as being a serious mistake that would come back to haunt them. Binding agreements made by a prosecutor don’t just go *pouf* when he leaves office.

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  2. James Joyner says:

    @HarvardLaw92: I don’t recall the controversy offhand, but Doug wrote about it in some detail in January 2016 and again in February 2016 when the judge decided it didn’t matter. Obviously, a boneheaded call.

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  3. Michael Reynolds says:

    @HarvardLaw92:
    Rather off-topic, but ‘pouf?’ The Frogs are getting to you. The word is ‘poof’ in English.

    Back on topic, sadly, I agree you and the court are right. Justice and the law aren’t always the same thing.

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  4. HarvardLaw92 says:

    @Michael Reynolds:

    I don’t like the outcome. He belongs in prison, but the court did blow it. Question now is whether the office will go for a third trial with much of the prior evidence off of the table. I’m inclined to think they won’t. It guts their case.

    Poof isn’t a nice word in the UK. Embarrassingly found that one out the hard way 🙂

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  5. HarvardLaw92 says:

    @James Joyner:

    Yah. I’m going from memory and don’t recall the specific comments / when, but I remember thinking / saying that they’d monumentally screwed up. Hubris or desperation, I guess. I’m guessing that they either thought they’d get by with it or they wanted to nail him so badly they made a deal with themselves and the devil. Never works out well.

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  6. Kathy says:

    What’s so grating is the man made millions playing a nice guy, and he exploited that image a great deal.

    Now, many actors are very different from the roles they portray. But few resort to criminal actions in real life.

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  7. gVOR08 says:

    Yes, the prosecutor and the court screwed up and the state Supreme Court is doing the correct thing. But, as James points out, there really isn’t any doubt Cosby’s guilty. He confessed and got off on a technicality around his confession.

    I’m going to score it as another in a long trail of things that show how screwed up our legal system is. I doubt anyone in similar circumstances, but without Cosby’s money, could have gotten off.

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  8. Roger says:

    @HarvardLaw92:

    Question now is whether the office will go for a third trial with much of the prior evidence off of the table.

    That question’s pretty easily answered. The Pennsylvania Supreme Court held that the promise not to prosecute is enforceable for all time. He is discharged and the case is done.

    For what it’s worth, I’m quite a bit less confident than HL92 is that the court got this one right. I think that the dissent has the better argument that the evidence failed to establish a promise not to ever prosecute as opposed to the exercise of discretion not to prosecute now, and the court’s willingness to wave away a trial court’s credibility findings on that issue shows a concern for a defendant that someone who was not America’s Dad may not have received. I also believe, however, that the dissent got it right in suggesting that the admission of evidence of other bad acts in the second trial was wrong and likely meant that this conviction was never going to stand.

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  9. HarvardLaw92 says:

    @Roger:

    I’ll defer. I haven’t read the opinion yet, just the coverage, so you’re probably correct.

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  10. Jon says:

    Interesting counter-point, but I have no idea if it holds any water.

    The claim is that in PA prosecutors do not have the discretion, legally, to enter in to non-prosecution agreements with anybody on their own. It has to be brought before a judge.

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  11. Stormy Dragon says:

    Counterpoint: what stops a corrupt DA from just giving out agreements to all his donors not to prosecute them for anything? Seems like the court is saying those agreements are binding and there’s nothing to stop any low level prosecutor from rendering people above the law.

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  12. HarvardLaw92 says:

    @Stormy Dragon:

    In this case the promise not to prosecute was proffered in order to motivate Cosby to testify in a civil action. IIRC (going off of memory and it was 5 years ago) that civil deposition was subsequently used against him in his criminal trial. Believe my argument at the time (I’m still looking for it tbh) was that it (and its fruits) should have been suppressed. Without it though, they’d never have gotten the conviction. On the flipside, without the promise made by the prosecutor, Cosby never would have given that deposition in the first place, so the state encouraged him to put himself at jeopardy for criminal prosecution predicated on a promise not to prosecute (which would nullify that jeopardy).

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  13. MarkedMan says:

    @gVOR08:

    He confessed and got off on a technicality around his confession.

    My reading is that it is much worse. A prosecutor ensured that he could never be prosecuted criminally for his crimes. I would like a check of that prosecutor’s bank account.

    Surprise, surprise, he went on to become a lawyer for Trump.

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  14. HarvardLaw92 says:

    @MarkedMan:

    He determined that the criminal case was weak (she had credibility problems, among other things), so in order to essentially force Cosby to testify in a civil trial, he made the promise of non-prosecution. That does a bit more than just immunizing one from being prosecuted. It also strips one of the ability to assert 5th Amendment rights in a subsequent civil action. By issuing the promise, the DA forced (and by his admission intended to force) Cosby to testify when Constand sued him. He and his attorneys reasonably relied on that promise and proceeded to self-incriminate in the civil action. The DA got what he was after – Cosby ending up settling that action with her for several million dollars.

    That bell can’t be unrung, and it raises all sorts of due process issues. At a minimum, the civil depositions should have been suppressed, along with anything they’d led to. They weren’t, and thus we find ourselves here because a DA decided to get creative.

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  15. MarkedMan says:

    @HarvardLaw92: Didn’t the promise go beyond the scope of that individual case though? What was the purpose of that?

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  16. HarvardLaw92 says:

    @MarkedMan:

    The DA at the time promised not to prosecute only with respect to the events concerning Constand. His statement was that Cosby would be open to prosecution for other events (ie if another person came forward with allegations that weren’t time-barred). At the time there weren’t really any of those. The known potential victims were all well past SOL.

    Short version is: “you won’t be prosecuted over Constand, but anybody else who might come along, you’re wide open.” The entire thing was intended to encourage her to file a civil suit against him and to force him to testify in it once she did. It absolutely worked as intended, but doing it created due process problems that the subsequent DA and court tried to pretend didn’t exist. You can’t basically force someone to incriminate themselves then use it against them. Takes the 5th Amendment and shreds it into the garbage.

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  17. HarvardLaw92 says:

    @MarkedMan:

    In a just world, there will be another lady / victim out there whose case isn’t tainted by this garbage who can put him back where he belongs. Fingers crossed.

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  18. Kathy says:

    @HarvardLaw92:

    That’s not the world we live in.

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  19. HarvardLaw92 says:

    @Kathy:

    True, but I remain hopeful just the same. He’s a predator, and predators belong in prison.

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  20. Ken_L says:

    Another case eroding public confidence in the American legal system. If the appeal had reasonable prospects of success, which clearly it did, why was Cosby not out on bail until it had been decided? He’s spent two years in jail because of a miscarriage of justice, no matter what one thinks about his guilt or innocence of the original charges.

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  21. EddieInCA says:

    I personally know three of the victims. If I had the means and/or expertise, I’d…….

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  22. MarkedMan says:

    @HarvardLaw92: OK. I withdraw my comments. And make a mental note that just because a lawyer represents a foul piece of garbage like Trump, doesn’t automatically make him a foul piece of garbage himself.

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  23. HarvardLaw92 says:

    @MarkedMan:

    I kind of get why he did what he did, but he created a mess too. There are no winners in this one except the asshole who should still be sitting in his cell.

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  24. wr says:

    @Ken_L: “He’s spent two years in jail because of a miscarriage of justice”

    If Cosby spending time in jail strikes you have a miscarriage of justice, you have an odd notion of what justice is.

    It may have been a violation of certain agreements, and therefore not enforceable, but it was certainly a lot closer to justice than the present state of affairs.

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  25. Ken_L says:

    @wr: I’ve never taken the slightest interest in the Cosby case, so I’ve no idea what he is alleged to have done. But he spent two years in prison as a consequence of a conviction an appeals court has decided was wrong. That’s the very archetype of a miscarriage of justice.

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  26. Kylopod says:

    @Kathy:

    Now, many actors are very different from the roles they portray. But few resort to criminal actions in real life.

    It was the starkness of the contrast that shocked people. His status in our culture was not just the idea that he was a nice guy. He was black Mr. Rogers. And he wasn’t just accused of sexual assault by one accuser or a few, but by about 60 women. That’s extreme even by Me-Too standards.

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  27. flat earth luddite says:

    @HarvardLaw92:

    Of course, reactionary me reminds everyone that if they hadn’t stuck the old dude in PC, he wouldn’t have been alive to be released at this point. Just sayin’

    @HarvardLaw92:

    they wanted to nail him so badly they made a deal with themselves and the devil

    Way off topic, but when I read this, I immediately heard Frank Zappa singing “Titties and Beer” playing in my head. Hideously inappropriate, but the bit where the Devil decides that Frank isn’t the kind of guy who he wants to sign a contract with rang true. Surely not the first DA who’s made a bad deal, Shirley, but one that’ll be remembered for a long time.

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  28. wr says:

    @Ken_L: “@Ken_L: “I’ve never taken the slightest interest in the Cosby case, so I’ve no idea what he is alleged to have done. But he spent two years in prison as a consequence of a conviction an appeals court has decided was wrong. That’s the very archetype of a miscarriage of justice.”

    It’s certainly an interesting time to take up an interest in the case. But in short, he drugged and raped a lot of women.

    And the court decided the decision was wrong based on a technicality, not on any belief by anywhere that Cosby was innocent.

    I guess it’s only an outrage when poor people use the system to get off on a technicality. When rich people do it, it’s justice.

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  29. Ken_L says:

    @wr: Let me rephrase it as “a miscarriage of the justice system“, if that makes my point clearer. Either Cosby served two years imprisonment which he shouldn’t have, or he’s been cleared of crimes of which he was guilty. Either way, the system has failed and public confidence in it will erode as a consequence, which was my point.

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  30. HarvardLaw92 says:

    @James Joyner:

    I looked back through the commentary at the time, and my memory appears to be mistaken. Aside from a few comments covering the PA rules of evidence and a prediction or two based on those (which the trial court turned on their head by doing something it shouldn’t have), I couldn’t really find anything substantive I’d posted at the time. My error. This getting older thing sucks…

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  31. HarvardLaw92 says:

    @flat earth luddite:

    From your lips to G-d’s ears. I admit that I chuckled at that one and went to find the song. 🙂

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  32. Gustopher says:

    @HarvardLaw92:

    I kind of get why he did what he did, but he created a mess too. There are no winners in this one except the asshole who should still be sitting in his cell.

    On the plus side, he won’t get those two years of his life back. He deserved more time in jail, but at least we got two years.

    If there’s going to be prosecutorial misconduct, at least it got someone guilty as hell this time.

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  33. HarvardLaw92 says:

    @Gustopher:

    Indeed. Good point

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  34. KM says:

    @Ken_L:

    Either Cosby served two years imprisonment which he shouldn’t have, or he’s been cleared of crimes of which he was guilty.

    This is where the difference between legal and moral comes into play for most people. Asking people to be upset or concerned when a confessed guilty part spends time in jail that they “shouldn’t have” according to a potentially-illicit agreement and fine-point technicality isn’t going to shake their faith in the system. If anything, they’re going to be pissed he only got those two years in jail considering he won’t be held responsible for the rest of his crimes since it will feel like he cheated his way out, not was falsely imprisoned. The rich get away with this because they’ve got lawyers and money to weasel words around and attack every angle; your average American isn’t going to be this lucky and would still be in that cell.

    It’s not like he was railroaded, an innocent party selected at random, framed and tricked into confessing to close a case. They didn’t go after him because he was famous and he’s burned all the cred he’ll have in this life. At worst he found out there’s no honor among thieves and expecting someone to honor a iffy deal when scummy yourself just gives karma the chance to do it’s thing. Cosby screwed up but the legal system screwed up worse so he comes out the winner in the end.

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  35. Matthew Bernius says:

    @Ken_L:

    If the appeal had reasonable prospects of success, which clearly it did, why was Cosby not out on bail until it had been decided?

    There is no constitutional right to bail after conviction and sentencing. PA state statue does allow for bail after sentencing in some cases. However, the length of Cosby’s sentence (more than 2 years) and nature of the conviction (violent felony sex crime) made it unlikely he would get it. There is an option for Judicial Discretion-but those are few and far between. In that respect, for better or worse, he was treated the same way anyone else in a similar position would be.

    My general take on the entire thing is that these are the cases where those of us interested in criminal legal system reform need to remind ourselves that it is better to occasionally have someone guilty escape punishment than having someone innocent being punished for something that they didn’t do.

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