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He was a special accused who obtained special justice


For a defendant, victory on appeal is rare. Even rarer is a ruling barring further prosecutions, as the Pennsylvania Supreme Court rendered on Wednesday when it overturned Bill Cosby’s conviction.

When celebrities or mega-rich are involved, traditional politics are tossed out the window – not just at the Montgomery County courthouse, but in every courthouse.

For Cosby, this is a huge victory. For the women who have accused Cosby of actions ranging from trial and error to sexual assault to rape, it is a devastating blow. For other victims of sex crimes and potential defendants, this makes almost no sense. This decision has little or no precedent value because nothing like this is likely to ever happen again.

Bill Cosby has always been a special defendant, so the state Supreme Court’s decision was a special case. When celebrities or mega-rich are involved, traditional politics are tossed out the window – not just at the Montgomery County courthouses, but in every courthouse in America.

In Cosby’s case, the unusual treatment began when Montgomery County District Attorney Bruce Castor publicly announced in 2005 that after investigating the Andrea Constand allegations he would not charge the celebrity. Cosby has denied any wrongdoing and previously said his contact with Constand was consensual.

Castor may have made his announcement for a noble reason: given his determination that there was “insufficient” evidence to support the charges beyond a reasonable doubt, it provided a means to compel Cosby to testify in a civil case in which Constand could receive compensation. By announcing that he would not be suing the comedian, Castor denied Cosby the opportunity to claim Fifth Amendment privilege against self-incrimination while testifying in the civil action. Cosby relied on that assurance to his detriment.

As the court opinion stated, “after determining that a criminal case could not possibly be won, DA Castor considered another course of action that could put Constand on the path to some form of justice. He decided that a civil suit for damages was his best option.

This is not normal. District attorneys generally do not make decisions about whether or not to charge a defendant – or to refuse to do so – for the purpose of influencing the outcome of a civil case. Instead, prosecutors will seek restitution, an order in a criminal case requiring the defendant to pay a victim to be cured. But that’s part of the criminal case.

Prosecutors will tell you they don’t care about civil matters. After all, they are prosecutors; they wouldn’t have joined the DA’s office if prosecution was their thing. But special defendants receive special treatment.

It is not always because the judge or the lawyers are stunned or intimidated by the celebrity. Quite the contrary: Prosecutors assigned to a celebrity case are playing their game, knowing their careers could go up or down with this high-profile case. The heightened sense of security and the presence of cameras on the steps of the courthouse also prompt jurors to sit up and listen more attentively.

Here, it appears that a prosecutor felt a pressure to do an unusual maneuver to satisfy an audience unusually listening to a given case and demanding action. It is not necessarily an injustice. It’s just… different.

When you use a different rulebook, it can end up backfiring on you.

Based on Cosby’s statements in the civil action, he was subsequently indicted by Castor’s successors in 2015 and convicted of three counts of aggravated indecent assault. On Wednesday, he was released because the Supreme Court ruled that Castor made an unconditional promise not to prosecute, and Cosby relied on that guarantee to the detriment of his constitutional right not to testify.

As the Supreme Court opinion said, “Unable to invoke a right not to testify in civil proceedings, Cosby relied on the District Attorney’s declension and took four affidavits. During these depositions, Cosby made several incriminating statements. “

The court concluded that not enforcing Castor’s assurances “would violate long-cherished principles of fundamental fairness.” The court then barred any future prosecution of Cosby on these particular charges.

What the court has not done here is that whenever a prosecutor refuses to prosecute, the defendant in question is forever immune. Quite the contrary: he ruled that in this situation, these unique assurances prompted Cosby to waive his rights.

District attorneys generally do not make decisions about whether or not to charge a defendant – or to refuse to do so – for the purpose of influencing the outcome of a civil case.

This is exactly why district attorneys almost never issue a signed press release refusing to prosecute a suspect: they don’t want to compromise their ability to bring a case in the future.

Instead, in cases where agreements are made to reduce the charges or not indict a suspect, this is usually spelled out in excruciating detail on paper in a formal plea agreement, with the terms often being read out in front. the tribunal. In other words, they make it clear what the deal is to avoid ambiguity, challenges and lawsuits.

Castor would have been better off sticking to the standards that guide prosecutors rather than making an exception for Cosby, even though, as the attorney testified, it was to help his alleged victim get redress. In the end, special justice was injustice.



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