Diaspora Stories

The Law is an Ass: Bill Cosby and the Justice System in America

The decision by the United States Supreme Court to reverse Bill Cosby ’s conviction has generated heated debate in the global community. Critics opine that justice has overstepped its bound in reversing the facts excavated by the trial court. Many have questioned the infallibility of the United States judicial system as a result of that reversal, because they taught the entertainer was found guilty and should be jailed,
Bill Cosby has made matters worse by trying to portray the decision of the Supreme Court to reverse his conviction as an exoneration. The 84-year-old actor has continued to swim in an ocean of ‘I told you so.’
However, the court did not find Cosby to be innocent of charges, which says he had drugged and sexually assaulted Andrea Constand at his home outside Philadelphia in 2004.
It was on technical grounds that luck landed in favour of Bill Cosby. What was discovered was that prosecutors had violated Cosby’s due process rights by ignoring an oral promise a former district attorney, Bruce L. Castor Jr., says he made to Cosby in 2005, assuring him that he would be immune from prosecution in the case.
Castor said he had determined there was insufficient evidence to charge Cosby. Castor hoped, he said, that by promising immunity he would remove Cosby’s ability to cite his Fifth Amendment privilege against self-incrimination and induce him to testify in any civil suit Constand might file.
Constand did file a suit and Cosby testified, acknowledging giving Quaaludes to women he wanted to have sex with. At his criminal trial more than a decade later, prosecutors entered that statement into evidence.
The Supreme Court ruled that Cosby had relied on Castor’s assurances when he provided the potentially incriminating evidence and that Castor’s successors, bound by his promise should never have charged Cosby years later.
But critics of the decision say that, unlike the two lower courts, the justices ignored compelling reasons to question whether such a promise of immunity ever existed.
The Supreme Court decided to reverse Cosby’s sexual assault conviction because it found that Cosby had relied on a 2005 promise of immunity from Bruce L. Castor Jr., the district attorney at the time.
Appellate courts typically do not overturn findings of fact by the trial court if they are backed by the record. They serve to examine whether lower courts correctly interpreted the law and followed the procedures to ensure a fair trial. The facts, many legal analysts argue, are best determined by the trial court, which has heard witnesses and overseen evidence in person.
Reports say, some law experts have taken to Twitter to publish critiques of the decision. Reaction to the ruling has been strong outside legal circles too, especially among the more than 50 other women who have accused Cosby of sexual abuse and who, because the statutes of limitations had run out, viewed the Constand case as perhaps their last shot at justice.
In the midst of it all, the chief justice of the Pennsylvania Supreme Court, Max Baer, decided to discuss the ruling on television — a rarity for judges. He defended it and called Cosby’s prosecution a “reprehensible bait and switch” by the government.
To be sure, some lawyers agree with him and applaud the court’s 6-1 ruling, a notable consensus on a difficult matter. They believe it delivered a strong message about prosecutorial overreach — about district attorneys’ sticking by the promises they make, even if those promises were ill-advised. But the “promise” remains a matter of much dispute.
Castor said that, although he believed Constand’s account, she had hurt her credibility as a complainant by waiting a year to report Cosby and by continuing to have contact with him after the alleged assault.
He said he decided he could not secure a conviction, so he made the promise as a tactic to get Constand a measure of justice in the civil case.
But the promise was never written down. The prosecutor who handled the Cosby investigation with Castor, his chief deputy, Risa Vetri Ferman, said he never told her about it. Castor pointed to a news release he had issued announcing the end of the criminal investigation as evidence that an immunity agreement existed. But the news release does not mention anything about immunity. It does mention the anticipated civil case.
Castor said he briefed one of Cosby’s lawyers at the time about his plan to offer Cosby immunity. But the lawyer, Walter Phillips, was dead by the time the promise became an issue and Cosby was criminally charged in 2015. Another of Cosby’s lawyers from the original case, John Schmitt, testified that Phillips had told him about it.
Castor said he also discussed the immunity arrangement at the time with Constand’s lawyers. The two lawyers, Dolores M. Troiani and Bebe H. Kivitz denied that.
Given that there was no written immunity agreement, several lawyers said they found it odd that Cosby never drew attention to the promise he had secured before taking questions at his deposition in the civil case.
Constand’s civil case ended in 2006 in a settlement under which she received $3.38 million. During the negotiations, court papers show that Cosby’s lawyers sought to include a provision barring her from cooperating with any future law enforcement investigation, though by Castor’s account, the lawyers had already secured immunity for their client.
Critics of the Supreme Court’s decision point to what they say are the inconsistent explanations Castor gave about what he had agreed to. When the Montgomery County District Attorney’s office reopened the investigation into Cosby, Castor alerted the office that its prosecution might be hampered by a promise he had made. Castor was at the time campaigning to regain his former post as district attorney against an opponent who later made Castor’s decision not to prosecute Cosby in 2005 an issue in the race. Castor told the office in an email that his agreement with Cosby meant that the deposition testimony could not be used against the entertainer. But he said he had not given Cosby full immunity.
In an interview, Castor denied he had been inconsistent and said his meaning had always been that Cosby could never be prosecuted on the Constand charges. “The only way to guarantee, to unlock the Fifth Amendment protection was to guarantee he would not be prosecuted,” he said.

He said that when he had said he was still open to prosecuting Cosby, he meant that prosecutors might be able to find evidence in the testimony about Cosby’s encounters with other women, not Constand.
In its recent ruling, the Supreme Court agreed that Castor’s descriptions of the promise were “inconsistent and equivocal,” but it held that he had been the district attorney, a powerful position and that Cosby had a right to rely on his assurances. It emphasized the fact that, although there had been no formal agreement, Cosby had agreed to sit for four days of deposition in the Constand civil suit, a decision the justices viewed as evidence that a promise must have existed. By their reasoning, Castor’s successors were breaking that promise, however informal, and undermining his due process rights by using his deposition against Cosby.
“The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees,” the court’s majority opinion said.
In particular, the Supreme Court parsed the language of the 2005 news release in which Castor announced his decision not to prosecute Bill Cosby. It read, in part: “The District Attorney does not intend to expound publicly on the details of his decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action. District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise.”

The Bill Cosby case illustrates that truth and justice in the United States of America are hostages of the law, which is a hostage of those that manipulate it – the lawyers.