The Pennsylvania Supreme Court on Wednesday issued a shocking rulingstriking down Cosby’s 2018 sexual assault conviction. It said charges against Cosby were illegally brought in light of an unwritten deal he had struck with Castor, who was then the district attorney for Montgomery County, Pa., and later served as Trump’s impeachment lawyer.
The crux of the ruling is this: Castor had said he had a deal with Cosby saying Cosby wouldn’t be charged criminally for the sexual assault claimed by Andrea Constand. Castor said he did so to prevent Cosby from pleading the Fifth Amendment in ongoing civil litigation. The Pennsylvania Supreme Court ruled that charging Cosby for that crime, for which he was later convicted, violated his due-process rights.
In other words: You can’t offer someone protection from criminal prosecution so they’ll testify fully in civil court and then use their testimony to charge them criminally. Here’s the crux of the ruling:
When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity. … A contrary result would be patently untenable.
It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.
For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.
If any of that sounds familiar, it’s because it came up about five months ago, when Trump plucked Castor from increasing political obscurity to be his last-minute lawyer in his impeachment trial, after multiple shake-ups in Trump’s legal team.
But during Cosby’s trial, there was a significant question about just how much Castor had actually promised Cosby he wouldn’t be charged.
Castor in 2005 declined to prosecute Cosby after Constand, a former Temple University employee, accused Cosby of drugging and raping her. He was later called as a witness by Cosby’s legal team, and he claimed not just that he had decided not to charge Cosby, but that there was a deal in place under which Cosby would not be charged. Except Castor’s news release on not charging Cosby contained no such claim to a non-prosecution agreement.
But Castor testified that it existed. From what I wrote in February:
Cosby’s team called Castor as a witness, and Castor claimed there was just such a secret deal in place, despite there having been no mention of it in his news release announcing his decision.
“Mr. Cosby was not getting prosecuted at all — ever — as far as I was concerned,” Castor said. “My belief was that I had the power to make such a statement.”
Castor added: “I made a judgment as the sovereign representing the commonwealth not to prosecute Cosby. I was the only person in Pennsylvania who had the power to make that decision, and I made it.”
Castor explained that he made the decision so that Cosby couldn’t plead the Fifth Amendment in a civil case brought by the woman, Andrea Constand, which was ultimately settled in 2006. Cosby’s team used the supposed agreement in failed attempts to get the later criminal case dismissed and to argue that Cosby’s deposition in that civil case couldn’t be used at trial.
The judge in Cosby’s trial pressed Castor on why he hadn’t put the non-prosecution deal in writing, and Castor said that he didn’t feel the need to do so.
“It was unnecessary, because I concluded that there was no way the case [against Cosby] would get any better,” he said.
The judge, Steven T. O’Neill, rejected that claim, saying, “There’s no other witness to the promise. The rabbit is in the hat and you want me at this point to assume: ‘Hey, the promise was made, judge. Accept that.’ ”
The Pennsylvania Supreme Court has now reached a very different conclusion. It found that Cosby’s lack of a Fifth Amendment claim was evidence that such a deal was indeed in place.
“Nor did Cosby claim the protections of the Fifth Amendment when asked about other alleged victims of his sexual abuse, presumably because he believed that he no longer retained that privilege,” the ruling says. “In fact, no one involved with either side of the civil suit indicated on the record a belief that Cosby could be prosecuted in the future.”
One of the justices, though, filed a dissent rejecting the rationale for overturning Cosby’s conviction, emphasizing the lack of documentation of the deal. Justice Thomas G. Saylor also suggested that Castor’s claims in court might have been biased against a prosecution, given that Castor declined to bring his own case and that the man who unseated him for district attorney, Kevin Steele, attacked him for that decision when they ran against each other.
“The fact of an unwritten promise, however, was rejected on credibility grounds [at trial], and Castor’s account of his motivations underlying his uncredited assertion of a promise need not be separately contradicted by record evidence to also fall by the wayside,” Saylor wrote. “In any event, there are numerous possible explanations for why Castor issued a press release reflecting his decision not to prosecute in a high-profile matter, as well as for why he subsequently claimed there was a promise not to prosecute, beginning in his ensuing correspondence with his successor.”