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June 30, 2021

Split Pennsylvania Supreme Court overturns Bill Cosby's convictions based on prior prosecutor's announcement of non-prosecution

In a high-profile setting, a split Pennsylvania Supreme Court has today ruled that it was a violate of due process for prosecutors to engage in what  one Justice describes as a "coercive bait-and-switch" concerning potential prosecution.  Because the defendant at issue is Bill Cosby, there is lots of media coverage of Pennsylvania v. Cosby, No. J-100-2020 (Pa. June 30, 2021) (all opinions available here).  The start of the majority opinion (which runs 79 pages) sets up the issue that is ultimately setting Bill Cosby free:

In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004 at his Cheltenham residence. Along with his top deputy prosecutor and experienced detectives, District Attorney Castor thoroughly investigated Constand’s claim.  In evaluating the likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly.  D.A. Castor further determined that a prosecution would be frustrated because there was no corroborating forensic evidence and because testimony from other potential claimants against Cosby likely was inadmissible under governing laws of evidence.  The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt.”

Seeking “some measure of justice” for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.  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.

D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking.  The fruits of Cosby’s reliance upon D.A. Castor’s decision — Cosby’s sworn inculpatory testimony — were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial.  We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth.

A few of many prior related posts:

June 30, 2021 at 02:08 PM | Permalink


The majority opinion sounds like a stretch that I am not sure applies beyond this one case. They appear to convert a routine decision not to prosecute based on the information available at the time into a de facto immunity agreement (even though the attorneys never formally entered into one) because the prosecutor at the time saw the decision as final and the defendant's attorneys mistakenly advised their client that he could not assert the Fifth Amendment in his civil case due to that decision.

Even assuming that there was some non-contractual promise that Cosby relied on, it seems like the proper remedy would be exclusion of any inculpatory statements that Cosby made in his civil case rather than retroactively turning the non-prosecution decision into a grant of immmunity that the prosecutor lacked the authority to grant. The concurring opinion gets the issue of remedy correct.

Posted by: tmm | Jun 30, 2021 4:10:31 PM

Thank goodness. Prosecutor's promise controls. Squalid, intentional attempt to prevent him from raising the 5th at his dep.

Posted by: Fluffyross | Jun 30, 2021 6:46:10 PM

Finally. A terrible wrong has been righted. The judge and the prosecuting attorney should be disbarred.

Posted by: restless94110 | Jul 1, 2021 11:21:45 AM

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