(With apologies to documentarian/comedian W. Kamau Bell for appropriating the title of his excellent four-part documentary on Showtime, We Need To Talk About Cosby. If you’ve not seen this yet, you really should. It’s worth a subscription to Showtime to watch it.)
A lot of people were appalled and disgusted when Bill Cosby’s rape conviction was overturned. I know, because I was one of them. But the legal issue that resulted in Cosby being freed is an area of law that I’m very familiar with from having represented peace officers. So when I read the Pennsylvania court’s decision, it made sense to me. I had to acknowledge that as awful as it was to see Cosby released from prison, and (falsely) proclaiming his innocence, it was still the right legal result. Of course most people have no idea why Cosby was freed. Most journalists, unfortunately, do a terrible job of reporting on legal issues because they themselves don’t have the legal background to understand the legal reasoning behind the results, and even if they did, they often do a poor job of explaining those results to laypeople. (This is true not just in reporting on legal issues, but in the reporting of science, medicine, and other areas that require specialized knowledge).
With this blog entry, I hope to do what I believe that the mainstream reporting didn’t do well at all: Explain the reasoning behind the Cosby decision in a way that most people can understand. I don’t expect anyone to like the decision, because there’s nothing to like. A serial rapist was released from prison after serving a ridiculously short amount of time. There’s no getting around that fact. But if you believe in the Fifth Amendment, which is one of the core values embedded in our constitution, then hopefully this entry will convince you that the decision was right, even if the result in this instance is nauseating.
Back in 2004, Cosby was being investigated for rape. His victim had contacted the DA months after the rape occurred in January 2004. The DA decided not to bring charges against Cosby, believing that the evidence (including the victim’s testimony) would not be sufficient to get a conviction against Cosby. The victim hired civil lawyers and later filed a civil case against Cosby.
But what made this case truly unusual is that the DA made a specific point (and said this publicly, and in writing in the form of a press release) that he decided that the best way to get some measure of justice for the victim was to not prosecute Cosby, thereby stripping him of any Fifth Amendment protections against testifying against himself in a criminal proceeding. In other words, the DA intended, and said so publicly, that he was intending to remove the threat of criminal prosecution, so that Cosby could be forced to give testimony in a civil case.
And that was exactly what happened. Cosby testified four times in a civil deposition in the civil case. He admitted giving the victim Benadryl and claimed to have had consensual sex with her later that evening. (He also admitted to previously giving Quaaludes to women whom he wanted to sleep with). Cosby then settled the civil case with the woman for what was reported as in the 3.5 million dollar range.
It’s important to note here that without these statements from the DA, Cosby would have never made those statements in the deposition. Any halfway decent lawyer would have instructed Cosby to invoke his Fifth Amendment privilege against self-incrimination, and that would have been the end of it. But with the DA making public statements about there being no prosecution against Cosby, and going so far as to state that he was intending to remove Cosby’s ability to involve his Fifth Amendment privilege, Cosby’s lawyers believed that any attempts by Cosby to invoke his Fifth Amendment privilege would have been overruled by the court. So they allowed the deposition to proceed, and Cosby gave very damning, very incriminating testimony, as summarized above.
When the numerous other rape accusations against Cosby became national news 10 years later, the successor DA was looking to prosecute Cosby based on additional evidence that had become public: specifically, the public statements of nearly 60 other women that Cosby had done something similar to them. And at trial, the DA sought to use Cosby’s incriminating statements that he gave in the deposition back in 2004, statements that he made after being assured by the former DA that there was no possibility of prosecution, therefore eliminating Cosby’s right to remain silent and not give self-incriminating testimony. The former DA wrote a letter to the successor DA, reaffirming that it was his intention, in declining to prosecute Cosby, that his non-prosecution would strip away any Fifth Amendment protections.
Nonetheless, the new DA brought charges against Cosby. She insisted that Pennsylvania law made clear that any grants of immunity had to be in the form of a formal written agreement, and approved by the court. (This is a correct statement of Pennsylvania’s immunity statute). Accordingly, she believed that the prior DA’s oral promise of immunity, which was incorporated into a public written statement by the then-DA, and subsequently confirmed by the then-DA in several written letters, was not binding, and did not qualify as an immunity agreement, and therefore not could have have reasonably been relied upon as such. Cosby’s case proceeded to trial, and Cosby’s self-incriminating statements given during the deposition were introduced as evidence at trial. Cosby was ultimately convicted and sentenced to prison.
Cosby appealed, and the case went up to the Pennsylvania Supreme Court. The PA Supreme Court held, in a 4-3 decision, that because of the unique circumstances of the former DA purposely and intentionally seeking to strip Cosby of his Fifth Amendment right so that his testimony could be compelled in the civil case, that it was reasonable for Cosby and his lawyers to rely on the former DA’s statements, even though it was not a formal agreement. The court wrote that the special position occupied by prosecutors should not allow them to deliberately induce someone into giving up their Fifth Amendment rights, and then not delivering on the promise that induced the waiver of those rights. To allow otherwise is a violation of Due Process.
I agree with that entirely. It seems reasonable and logical to prohibit prosecutors from fraudulently inducing waivers of rights of the accused.
However, I still believe that Cosby civil lawyers were inept. Knowing that the PA statute required a written agreement for immunity, Cosby’s lawyers should have demanded a written immunity agreement and not allowed Cosby to give testimony in a civil deposition until that happened. It was foolish for them to expect that their untested legal argument that the prosecutor’s statements constituted legal immunity would prevail. Even though those arguments did ultimately prevail, their client Cosby spent two years in a prison because of their failure to demand a written immunity agreement before allowing their client to testify.
When I worked for a union-side labor law firm representing peace officers, this was a frequent, bread-and-butter issue for the firm. After a shooting or other critical incident, peace officers are often called upon to give compelled statements to investigators. But peace officers, like everyone else, have Fifth Amendment rights. If a peace officer was later prosecuted for an on-duty incident such as a shooting, the prosecution would then have the burden of proving that the evidence they introduced was not derived from any statements that the peace officer was compelled to give as a condition of their job. (For those of you who are, like me, old enough to remember Oliver North and the Iran/Contra scandal during the Reagan administration, you may remember that this was an issue during Oliver North’s criminal trial. North was compelled by Congress to give testimony at Congressional hearings that were televised and became a media sensation. North was convicted in federal court for crimes related to Iran/Contra, but his convictions were ultimately overturned because the appellate court determined that the prosecution had not conclusively established that the evidence and testimony presented at trial had not been “tainted” or influenced in some way by the widely disseminated public testimony that North was compelled to give before Congress).
None of this changes the fact that Cosby is an awful human being and clearly committed the crimes for which he was accused. But if you believe in constitutional rights, you must accept that the implication of these rights sometimes means that a criminal like Cosby will get away with it. If you believe that government must follow the rules and prosecute fairly, then you should believe that this is the right result, even though Cosby is despicable deserved to spend the rest of his life in prison.
What if, instead of a multi-millionaire celebrity like Cosby, the government induced a young, poor kid from Philadelphia to waive his constitutional rights and give testimony, and then turned around and used the information they received from that testimony to prosecute the kid for the same crime that they promised they wouldn’t, and then sent the kid to prison for 10 years? Would that sound like justice?
Some of you are probably thinking, “No, that wouldn’t be right. But neither is a serial rapist going free. What about the justice for all the women he drugged and raped over a period of decades?” Our constitution takes a broader view of justice. The constitution is more concerned with the wider implications of what would happen if the government, in its zeal to prosecute someone whom it believed committed a terrible crime, were allowed to compel self-incrimination. It is inarguable that the government would have an easier time and be far more efficient at throwing criminals like Cosby in prison if there was no Fifth Amendment. The same can be truth of the Fourth Amendment prohibition against unreasonable searches and seizures, the Sixth Amendment right to counsel, and every other right of the accused. The existence of these right necessarily means that there will not always be sufficient legally-obtained evidence to prosecute every instance of serious criminal activity. Sometimes, like in the case of Cosby, the evidence needed to secure a conviction will be constitutionally unobtainable. That’s our system, and while it’s clearly flawed, it’s better than giving the government carte blanche to do whatever it takes to secure a conviction.
I’ve included a link to the Pennsylvania Supreme Court decision in case you’d like to read it.
ST