When Bill Cosby’s convictions for “aggravated indecent assault” were reversed and he was released from prison, it was big news. His many accusers expressed anger and a strong sense of betrayal - largely aimed at the courts and criminal justice system. I was concerned about the reaction. So, I read the 79 page decision.
The convictions were reversed because the Pennsylvania Supreme Court concluded that District Attorney Castor promised in 2005 that his office would not bring any criminal charges against Cosby. Removing the threat of criminal prosecution meant that Cosby would not be able to assert his 5th Amendment privilege against self-incrimination if there was a civil suit over the same matter. Without being able to “take the 5th,” he could be forced to testify, even against himself.
And, that’s what happened. He was sued, subpoenaed and testified in four depositions. He admitted sexual contact with Andrea Constand, but asserted it was consensual. He also admitted that, over the years, he had given Quaaludes to women he wanted to have sex with, although he denied the pills he gave Constand were that drug.
In 2015, a different DA decided to prosecute Cosby, and he was arrested. The trial court had an extensive hearing about whether the 2005 decision truly meant Cosby would never be charged, no matter what new evidence emerged. After all, the non-prosecution decision was announced in a press release, not in any legal document, and was somewhat cryptic.
The trial court ruled that Cosby could be prosecuted, and his civil depositions could be used against him. The case ended in a hung jury, but at retrial, Cosby was convicted on all three counts. He was sentenced to 3 to 10 years in prison.
The first appellate court agreed with the trial court rulings and upheld the convictions. However, the state supreme court, in a 4-3 decision, disagreed and threw the case out. Clearly, this was a tough case on which judges disagreed.
It is understandable that those who believe Cosby is guilty see the decision as an injustice. As I’ve discussed in the last couple of columns, we have constitutional protections that government must follow. In a way, these are barriers to achieving the result we may want, but that does not make them “technicalities.”
The majority of the Pennsylvania Supreme Court concluded that the DA’s Office violated Cosby’s Constitutional Due Process rights by promising not to prosecute him, thereby giving him no way to avoid making sworn incriminating statements, but later charging him using those statements.
This all started with the first DA’s decision not to prosecute in 2005. It suggests to me that he was not educated about known dynamics of sexual abuse. Assessing credibility, what is “believable,” depends on your own knowledge and understanding.
DA Castor was wrong in his assessment. The jury found that Andrea Constand was credible; they believed her and convicted Cosby. This was not an easy case, but few are. It was unusual in that a well known figure was the defendant, but not at all unusual in the behavior patterns of both the defendant and the victim.
DA Castor apparently thought the case was weak because Constand did not immediately go to the police, and she continued to see and communicate with Cosby, who cast himself as her mentor. It appears he relied more on myths and stereotypes than the witness herself.
A DA who is willing to prosecute only cases where the victim and defendant did not know each other, or where there was a prompt report and no later contact, gives many criminals a pass.
It is common for a perpetrator to patiently groom an intended victim. They find ways to persuade the victim to be comfortable with them, to gradually accept touching. They are seeking someone who will comply; time, manipulation, and even drugs can help achieve that.
A serial predator learns how to select victims, and knows to rely on what others will perceive as ways to blame the victims or, at least, to question their credibility. It is the DA’s job to understand the reality of both criminal and victim behavior, then use their skills to make the strongest case possible.
Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.