Bill Cosby is being released from jail today

[Voronwë the Faithful]

I just saw that the Pennsylvania Supreme Court is ordering the immediate release of Bill Cosby. So far as I have been able to gather so far, they ruled that the trial court judge erred in allowing the prosecutors to have five other women testify to a pattern of conduct by Cosby. I am not enough of an expert on criminal law in Pennsylvania, or anywhere, to express an opinion as to whether this is legally correct. But it feels wrong to me.

[N.E. Brigand]

https://www.pacourts.us/assets/opinions ... 8.pdf?cb=1

Basically it's because Bruce Castor, a former district attorney whose office investigated an allegation of sexual assault against Bill Cosby in 2005, indicated at the time that he believed there wasn't enough evidence to bring a case. Cosby was then sued by his victim, Andrea Costand, and in order to help Constand get "some measure of justice," Castor's office gave Cosby a written assurance that they would not use testimony he gave in the civil case against him in a criminal proceeding. Cosby thus couldn't invoke his Fifth Amendment rights against self-incrimination and had to tell the truth in depositions in that case. More than ten years later, Castor's successors in that office decided to bring charges anyway, and after two trials, Cosby was convicted of assaulting Constand.

Pennsylvania's top court today ruled that broke the deal that Castor's office made and that Cosby should not have been and cannot be prosecuted for that crime.

Dissenting in part from today's ruling, two justices, one of whom is Pennsylvania's chief justice, seem to imply that there was a corrupt bargain between Cosby and Castor.

Castor, by the way, was one of Donald Trump's attorneys in his second impeachment trial, where he was widely viewed as incompetent.

[Voronwë the Faithful]

Yeah, the initial reporting that I saw was not at all accurate. I've read a large portion of the majority opinion. I have not yet read the concurring and dissenting opinion that Chief Justice Baer joined, or the dissenting opinion written by a third justice.

It still feels wrong to me.

[N.E. Brigand]

Some interesting discussion here, here, and here on the finer points of the decision.

Am I correctly understanding from these discussions that there wasn't really a deal with Cosby after all?

[Voronwë the Faithful]

I'm still digesting it, but that is certainly what some people are saying. I'm not prepared to say yet whether or not that appears to be true.

[Voronwë the Faithful]

It is incorrect to say that Castor gave Crosby a written assurance that they would not use his testimony from the civil case. However, all seven justices agreed that Crosby was justified in relying on Castor's press release announcing that Crosby would not be charged in the case, and I can't really fault that conclusion. Where the justices differ is primarily with regard to whether Castor was correct in believing that his decision not to prosecute should have been binding on subsequent prosecutors. The majority believed that it was binding. The other three, to various degrees -- and me, myself and I -- disagree.

[N.E. Brigand]

It is incorrect to say that Castor gave Crosby a written assurance that they would not use his testimony from the civil case. However, all seven justices agreed that Crosby was justified in relying on Castor's press release announcing that Crosby would not be charged in the case, and I can't really fault that conclusion. Where the justices differ is primarily with regard to whether Castor was correct in believing that his decision not to prosecute should have been binding on subsequent prosecutors. The majority believed that it was binding. The other three, to various degrees -- and me, myself and I -- disagree.

For reference, the district attorney's office 2005 press release, after broadly outlining the investigation, says that Bruce Castor "concludes that a conviction under the circumstances of this case would be unattainable. As such, District Attorney Castor declines to authorize the filing of criminal charges in connection with this matter."

The press release goes on to say that no opinion is being expressed as to whether the allegation is sufficient to win in a civil case and adds: "District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise." It's not at all clear to me what that's supposed to mean.

But I would have read that press release, which apparently was the only official statement about the non-prosecution, as being entirely descriptive of Castor's view of the evidence at that time and not even binding on Castor himself. "We decline to prosecute" is not the same thing as "We promise not to prosecute."

But apparently Castor has testified that he privately made that promise to Cosby's lawyers. Did Cosby's victims know that Cosby had waived his Fifth Amendment rights as part of an unwritten deal to avoid future prosecution?

[Voronwë the Faithful]

According to the majority opinion, "D.A. Castor did not communicate to Constand or her counsel his decision to permanently forego prosecuting Cosby. In fact, Constand did not learn of the decision until a reporter appeared at one of her civil attorney’s offices later that evening.

Moreover, Castor wrote in an email to the new D.A., "That is why I have publically [sic] suggested looking for lies in the deposition as an alternative now that we have learned of all these other victims we did not know about at the time we had made the go, no-go decision on arresting Cosby."

Of course, the other victims didn't know because Castor didn't tell them!

[N.E. Brigand]

During Donald Trump's presidency, people were asking whether a president could issue pardons in secret, which would only be made public if the recipient were ever under investigation or charged with a crime.

This reminds me of that.

[N.E. Brigand]

Someone else has identified the point which most troubles me: what if there never was even a secret deal?

Michele Dauber, a law professor at Stanford, says that the trial judge had found Bruce Castor's testimony to be non-credible, which would mean that Castor lied about ever having promised Cosby that he wouldn't be prosecuted.

And she points out that the Pennsylvania Supreme Court in its decision this week (1) acknowledges that the trial judge determined that there was no formal agreement not to prosecute Cosby; (2) writes that it is only able to rule on matters of law not matters of fact; and therefore (3) cannot overrule the judge's determination that there was no agreement (the Supreme Court writes: "Pertinently, we are bound by the trial court's determination that D.A. Castor's actions amounted only to a unilateral exercise of prosecutorial discretion"); and yet...

(4) ignores or sets aside the trial judge's factual finding that Castor isn't credible by (5) taking Castor at his word that his 2005 press release (which I quoted above), even though it didn't say that Cosby would never face prosecution, should be interpreted as the public expression of a secret non-prosecution deal he orally made with Cosby's team.

[Voronwë the Faithful]

I was trying to remember why the name Michelle Dauber sounded so familiar, and then I recalled that she led the campaign to get Judge Aaron Persky recalled from the Santa Clara County Superior Court after he sentenced Brock Taylor to six months in jail for raping an unconscious fellow Stanford student. So I am not surprised that that is her take on this.

That having been said, I fully agree with her analysis.

[N.E. Brigand]

Ah, thanks for making that connection, V. I did not realize that. As I recollect, the sentence Persky imposed in that case was lighter than I thought the offender deserved, but it was also in line with other sentences Persky had imposed, and so the recall campaign seemed sensationalist.

[Voronwë the Faithful]

At least Cosby is being held liable for his actions against one woman.

LA jury finds Bill Cosby sexually abused teenager in 1975; awards woman $500K