Protecting the First Amendment and Due Process

Bill Cosby’s 2018 conviction for sexual assault against Andrea Constand was overturned by the Pennsylvania Supreme Court on June 30. The release of Cosby from prison on a legal technicality brings into question whether our criminal justice system is working to protect the victims of crime, in this case sexual assault, or is it simply a way to extract information from the charged individual for some other purpose.

In Cosby’s case a deal was struck by the original District Attorney, Bruce Castor, for Cosby to testify honestly in a deposition in connection with the civil case against him. Cosby was given promises by the DA that he would not be criminally prosecuted if he cooperated. Cosby relied on those promises and agreed to be deposed. His mistake was to do so without a written agreement of immunity.

The assurances by the DA that Cosby would not be prosecuted was clearly a mistake. The only reason the DA gathered the necessary evidence was his assurances. Without them, Cosby may have invoked his Fifth Amendment right against self-incrimination. In some respects, I feel sorry for Cosby because he was duped by the original DA. However, we should blame his lawyer for not protecting him against subsequent prosecution in the criminal matter.

The abrupt reversal of the first high-profile sexual assault conviction after the #MeToo movement has attracted particular interest, raising questions such as whether Mr. Cosby could still face prosecution over any of the accusations of sexual assault and misconduct that more than 50 women have leveled against him. It appears he won’t because the statute of limitations has run out.

Should an oral agreement made by one DA be honored by a subsequent DA? This is the ethical question in the release of Bill Cosby. The Pennsylvania Supreme Court said ‘yes’ and, as a result, vacated his conviction after serving more than two years of a three-to-ten-year sentence. It is not the jail time he served that needs to be questioned. It is the message it sends to victims of sexual assault. They might worry about similar things happening to them if they come forward.

The Court basically said Cosby’s due process rights were violated and it was an issue of fundamental fairness. “When a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced,” Justice David N. Wecht wrote in the majority opinion.

Reaction to Cosby’s release was mixed, some saying he never should have been prosecuted while others saying it was a travesty of justice and worried that other victims of sexual assault would not come forward. Cosby’s biggest cheerleader was his wife in the Cosby Show, Phylicia Rashad, who is now Dean of the School of Fine Arts at Howard University. She tweeted: “FINALLY!!!! A terrible wrong has been righted—a miscarriage of justice is corrected!.”

One reason Cosby has his supporters, and many of them praised his release, is because of being a beloved entertainment star who was known as “America’s Dad” for his role in the Cosby Show. Cosby also starred in the TV show “I Spy,” and “Fat Albert,” along with comedy albums and a multitude of television commercials. For his performances, Cosby became one of the most trusted Hollywood stars at the time. He made an estimated $400 million during his 50 years in the entertainment industry.

Let’s assume that Castor and Cosby really did make a deal. In Pennsylvania, a prosecutor needs to ask the court for permission to officially grant immunity from prosecution. Castor never did. So if Castor really wanted this so-called deal to be legitimate, he would’ve gotten a court order and made it official. But he didn’t. 

Making deals for testimony essentially denies the rights of victims to have their day in court. It is unfair to them and should be questioned by the legal system. That promise should never have been made in the first place. And, once it was, someone in the legal system should have shut it down. Moreover, the other victims of Cosby’s sexual assault should have been contacted before making the deal. Not doing so violated their rights to be heard through the Constand case.

Posted by Dr. Steven Mintz, The Ethics Sage, on July 2, 2021. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.