In the June 30 2021 post, Shaun King said that Cosby (who was convicted of sexual assault and jailed in 2018) was unexpectedly released from prison due to a “HUGE error” made by prosecutors:
Just read the Pennsylvania Supreme Court decision on Bill Cosby.
Previous prosecutors indeed made an agreement with Cosby not to prosecute him if he testified in a civil court deposition.
Then they used his testimony there against him and prosecuted him.
A HUGE error.
Cosby didn’t simply “buy his way out of prison.” The original prosecutors made an unthinkable deal with him not to prosecute him.
He spoke under oath as a part of that agreement.
What he said under oath was so HORRIBLE that they decided to prosecute him.
They messed it up.
It’s not just that I believe Bill Cosby was guilty, his own testimony under oath clearly proved he was guilty. Without a doubt.
But prosecutors bungled the whole thing & made a deal not to prosecute him, then violated it.
Supreme Court tossed the whole case.
A historic error from the prosecutors.
King’s post didn’t link to the source material he cited, but it initially matched slightly less detailed news reports on the day Cosby’s conviction was overturned:
Comedian Bill Cosby has been released from prison after the Pennsylvania Supreme Court on [June 30 2021] vacated the indecent assault conviction against him.
The court’s decision upends the long-running legal battle against the once-beloved actor, whose conviction marked a major milestone in the #MeToo movement after he was accused of sexual misconduct by dozens of women stretching back decades.
In an 79-page opinion by the court, the justices found that Cosby’s due process rights were violated when he was charged for a 2004 assault after prosecutors previously told the comedian they wouldn’t bring criminal charges against him.
Cosby’s release appeared to be a surprise to much of the news media and among social media users, and discourse about that particular development centered primarily on the fact that Cosby’s conviction was vacated — not why it was vacated.
Just after the news broke regarding developments in Cosby’s case, popular legal analysis Twitter account (and blog) @Popehat summarized the reversal in terms extremely similar to King’s viral Facebook post:
This is the key finding of the Supreme Court of Pennsylvania that explains its reversal of the Cosby decision: the prior DA promised non-prosecution to force Cosby to waive his Fifth Amendment privilege and testify in a civil case, he did, then they prosecuted him with it.
In a series of threaded comments, @Popehat added:
So, though the evidence strongly supports Cosby being a long-time predator, this particular series of decisions by prosecutors seems pretty outrageous.
This is an excellent example of “how do we feel when the state violates the rights of awful people who would otherwise escape punishment”?
Also, I respectfully invite you to consider the difference between “the rich can beat the system” and “only the rich can reliably vindicate their rights”
However, both analyses and posts were secondary sources; King alluded to having read the decision in its entirety. A June 30 2021 Pennsylvania Supreme Court judicial opinion [PDF] uploaded to Pennyslvania’s state court website included the section attached in a screenshot to @Popehat’s initial tweet.
Of the text quoted below, the first paragraph appeared in the screenshot (on page 52), and the section continued:
For the reasons detailed below, we hold that, 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.
Prosecutors are more than mere participants in our criminal justice system. As we explained in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018), prosecutors inhabit three distinct and equally critical roles: they are officers of the court, advocates for victims, and administrators of justice. Id. at 52. As the Commonwealth’s representatives, prosecutors are duty-bound to pursue “equal and impartial justice,” Appeal of Nicely, 18 A. 737, 738 (Pa. 1889), and “to serve the public interest.” Clancy, 192 A.3d 52. Their obligation is “not merely to convict,” but rather to “seek justice within the bounds of the law.” Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978).
On page 59, the opinion addressed prosecutorial discretion, and its relevance in the court’s decision to vacate Cosby’s conviction:
An entirely different situation arises when the decision not to prosecute is unconditional, is presented as absolute and final, or is announced in such a way that it induces the defendant to act in reliance thereupon. When a non-prosecution decision is conveyed in such a way, and when a defendant, having no indication to the contrary, detrimentally relies upon that decision, due process may warrant preclusion of the prosecution. Numerous state and federal courts have found that a defendant’s detrimental reliance upon the government’s assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement even of unconsummated agreements. The cases are legion.
That is what happened in this case. There has been considerable debate over the legal significance of District Attorney Castor’s publicly announced decision not to prosecute Cosby in 2005. Before the trial court, the Superior Court, and now this Court, the parties have vigorously disputed whether D.A. Castor and Cosby reached a binding agreement, whether D.A. Castor extended an enforceable promise, or whether any act of legal significance occurred at all. There is testimony in the record that could support any of these conclusions. The trial court—the entity charged with sorting through those facts—found that D.A. Castor made no agreement or overt promise.
Much of that debate, and the attendant factual conclusions, were based upon the apparent absence of a formal agreement and former D.A. Castor’s various efforts to defend and explain his actions ten years after the fact. As a reviewing court, we accept the trial court’s conclusion that the district attorney’s decision was merely an exercise of his charging discretion. As we assess whether that decision, and the surrounding circumstances, implicated Cosby’s due process rights, former D.A. Castor’s post-hoc attempts to explain or characterize his actions are largely immaterial. The answer to our query lies instead in the objectively indisputable evidence of record demonstrating D.A. Castor’s patent intent to induce Cosby’s reliance upon the non-prosecution decision.
Subsequently, the opinion addressed initial interactions between Cosby and the District Attorney at the time (2005). It explained:
In January and February of 2005, then-D.A. Castor led an investigation into [complainant Andrea] Constand’s allegations. When that investigation concluded, Mr. Castor decided that the case was saddled with deficiencies such that proving Cosby’s guilt beyond a reasonable doubt was unlikely, if not impossible. For those reasons, D.A. Castor decided not to prosecute Cosby.
To announce his decision, the district attorney elected to issue a signed press release—an uncommon tactic in the typical case, but not necessarily so in cases of high public profile or interest. In that press statement, D.A. Castor explained the extent and nature of the investigation and the legal rules and principles that he considered. He then announced that he was declining to prosecute Cosby. The decision was not conditioned in any way, shape, or form.
D.A. Castor did not say that he would re-evaluate this decision at a future date, that the investigation would continue, or that his decision was subject to being overturned by any future district attorney. There is nothing from a reasonable observer’s perspective to suggest that the decision was anything but permanent.
Our inquiry does not end there. D.A. Castor’s press release, without more, does not necessarily create a due process entitlement. Rather, the due process implications arise because Cosby detrimentally relied upon the Commonwealth’s decision, which was the district attorney’s ultimate intent in issuing the press release. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby’s reliance. Indeed, the most patent and obvious evidence of Cosby’s reliance was his counseled decision to testify in four depositions in Constand’s civil case without ever invoking his Fifth Amendment rights.
Pennsylvania’s Supreme Court referenced the Fifth Amendment’s protection against self-incrimination repeatedly:
The right against compulsory self-incrimination accompanies a person wherever he goes, no matter the legal proceeding in which he participates, unless and until “the potential exposure to criminal punishment no longer exists.” … It is indisputable that, in Constand’s civil case, Cosby was entitled to invoke the Fifth Amendment. No court could have forced Cosby to testify in a deposition or at a trial so long as the potential for criminal charges remained. Here, however, when called for deposition, Cosby no longer faced criminal charges. When compelled to testify, Cosby no longer had a right to invoke his right to remain silent.
@Popehat’s remark about “the difference between ‘the rich can beat the system’ and ‘only the rich can reliably vindicate their rights'” was reflected in a subsequent portion, which delineated the way Cosby’s case progressed and addressed the reasons the decision was vacated.
The opinion then veered into the crux of the viral Facebook post by King:
The fact that Cosby did not assert any right to remain silent to the police or while sitting for the depositions is of no moment. Had his right to remain silent not been removed by D.A. Castor’s decision, Cosby would have been at liberty to invoke that right at will. That Cosby did not do so at other junctures is not proof that he held the right but elected not to invoke it, as the trial court evidently reasoned. To assume an implicit waiver of the right violates a court’s “duty . . . to be watchful for the constitutional rights of the citizen,” and to construe the existence of such rights broadly.
These legal commandments compel only one conclusion. Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].” Id. at 1065. Cosby could not invoke that which he no longer possessed, given the Commonwealth’s assurances that he faced no risk of prosecution. Not only did D.A. Castor’s unconditional decision not to prosecute Cosby strip Cosby of a fundamental constitutional right, but, because he was forced to testify, Cosby provided Constand’s civil attorneys with evidence of Cosby’s past use of drugs to facilitate his sexual exploits. Undoubtedly, this information hindered Cosby’s ability to defend against the civil action, and led to a settlement for a significant amount of money. We are left with no doubt that Cosby relied to his detriment upon the district attorney’s decision not to prosecute him.
What was apparently a rather sudden decision vacating the conviction overshadowed the question of why Bill Cosby was released, but the matter represented a portion of discussion on social media and in the news. King (and @Popehat) summarized the 79-page decision on Cosby’s conviction as an error made by the prosecution, the former observing that initial “prosecutors indeed made an agreement with Cosby not to prosecute him if he testified in a civil court deposition,” but then “used his testimony there against him and prosecuted him.” The complete decision matches those characterizations.