U.S. Supreme Court Refusing to Review Bill Cosby Case Not a Surprise, but it is a Disgrace

We’ll probably never know why the U.S. Supreme Court decided not to review the Pennsylvania Supreme Court’s decision to free Bill Cosby earlier this week. It was always a longshot. The nation’s highest court doesn’t hear 95 percent of the cases that come its way according to this story.

But honestly, I’m still trying to wrap my head around that Pennsylvania Supreme Court decision from last June anyway. What is still so infuriating to me is that it flouted the law. And now, with the nation’s highest court refusing to review it, it can’t be undone. What kind of message does that send to sexual assault victims? Not only are the majority of sexual assaults not reported to the police, when victims finally do take that step only 5.8 percent end in an arrest, only 0.7 percent result in a conviction and 0.6 percent result in incarceration. And now this?

    I’ve written at length for various publications about that mystifying decision (You can read them in my earlier Substack posts) so I don’t want to repeat myself here, but I just had to weigh in again because so many people still don’t seem to understand how unusual it was. The court even barred Cosby from being tried a third time, which is not the norm. Usually if a higher court rules evidence was used at trial that shouldn’t have been, the remedy is another trial without the use of said evidence. And the part ordering his immediate release? Let’s just say that, in my experience, the wheels of justice don’t usually turn that quickly.

The experts I interviewed for an op-ed for The [London] Sunday Times last summer were scratching their heads, too.

   "This was an extraordinary decision," said Dennis McAndrews, a former longtime Pennsylvania prosecutor who is no stranger to high-profile cases having successfully put madman millionaire John DuPont behind bars for murder in the late 1990s.  "To discharge a defendant based on so vague a statement by a former prosecutor that charges would not be brought is something unprecedented in my opinion."

Wesley Oliver, a law professor at Duquesne University in Pittsburgh who has followed the Cosby case closely over the years, agreed.

"To my knowledge, no court in the United States has previously concluded that a prosecutor's statement that it is not going to prosecute permanently precludes that prosecutor, or any other prosecutor, from bringing charges against a defendant," he said.

Frankly, I was shocked Pennsylvania’s Supreme Court even agreed to hear Cosby’s appeal on that issue i.e. whether, among other things, former Montgomery County District Attorney Bruce Castor ‘s February 17th, 2005 press release saying he wasn’t going to prosecute Cosby for drugging and sexually assaulting former Temple employee Andrea Constand at his Elkins Park, Pennsylvania home, just outside Philadelphia, was actually an immunity agreement.

Because there’s no proof of that.

I got that press release back in 2005, as I wrote about for The Daily Beast last June. It was a press release – unusual in that Castor wrote it himself and faxed it to the media himself, which I didn’t learn until Castor testified at a hearing on the issue in February 2016 - but just a press release nonetheless.

   It wasn’t until the news media reported in September 2015 that Risa Ferman, Castor’s former number two in 2005 who was now the Montgomery County District Attorney, had reopened Constand’s case that Castor started saying his press release was also an immunity agreement, that he’d promised Cosby he wouldn’t be prosecuted using anything in his deposition for the civil case, and that Ferman knew about all of that at the time.

   “I’m writing to you just in case you might have forgotten what we did with Cosby back in 2005,” he wrote in a letter to Ferman on September 23, 2015 after giving an interview to a local newspaper saying he had a “written declaration” he’d signed in 2005 indicating the Montgomery County DA’s office would not prosecute Cosby for anything he said in Constand’s deposition.

Ferman had no clue what he was talking about.

“We have searched all files related to the Cosby case in the DA’s office, the Detective Bureau and the Cheltenham Police, including my own personal file kept during our investigation, and no such document exists here, “ Ferman wrote back to Castor on September 25, 2015. “The first I heard of this binding agreement is your letter. … Since I know you keep copies of important documents I’m writing to request you provide a copy to us now.”

Castor responded by attaching the press release along with an email saying Dolores Troiani and Bebe Kivitz, Constand’s attorneys, had signed off on the non-prosecution agreement, something he testified to in February 2016 and which Constand’s attorneys adamantly denied under oath in that same hearing.

Aside from all that, Castor’s claims about Ferman make no sense. If there had been such a deal in 2005 and Ferman knew about it, why would she bother to reopen the case?

And if Cosby relied on this press release/immunity agreement/promise not to prosecute and that’s why he was so chatty during his depositions then why did his lawyers want Constand to agree never to cooperate with law enforcement about her case, as her attorneys testified to at that same hearing in February 2016? Troiani and Kivitz vigorously fought that during settlement negotiations in 2006 and ended up agreeing Constand could not initiate a criminal investigation instead. Which she didn’t. Prosecutors came to her in July 2015, via her attorneys, to see if she was willing to reopen that old wound. (The Pa Supreme Court even got that fact wrong in their opinion). Of the 60-plus women who had come forward saying Cosby had drugged and/or sexually assaulted them, or attempted to do so, hers was the only case that was still within the statute of limitations. So of course she agreed, though there was nothing remotely easy about it, which she wrote about in her emotional victim-impact statement in advance of Cosby’s sentencing in September 2018 and elaborated on in her book, “The Moment,” which came out last September.

And why was not one word of this so-called agreement mentioned in the deposition itself? Cosby didn’t even invoke his Fifth Amendment right not to incriminate himself when the police questioned him about Constand’s case in January 2005 so why would he do so at a civil deposition? Even the Pennsylvania Supreme Court pointed these things out.

Let’s also not forget Cosby gave a lengthy interview to the National Enquirer about the case in March 2005 – in exchange for them not printing their interview with Cosby survivor Beth Ferrier, who I got an exclusive interview with in June 2005 – making it even more difficult for him to plead the Fifth in the civil case.

Not to mention that it was an “extremely contentious” deposition, held over four days in September 2005 and March 2006, during which Cosby was “not cooperative,” Troiani testified. He even stormed out at one point. The six-month gap in-between sessions was because Constand’s attorneys had to file motions to compel to get the judge to force him to respond to questions he did NOT want to answer.

   Still, there’s no doubt Cosby was loquacious in that deposition. Was he enjoying his captive audience? When Troiani asked him if he knew Constand was gay (Constand was involved in a relationship with a woman during much of her 16-month friendship with Cosby), he went off on a long tangent about a phone conversation he supposedly had with Constand once where she told him she was interested in a female, “some sort of celebrity,” he said.

“The answer is I don’t know if she’s gay,” he responded. “What is gay? To me gay is a woman who is with women. But then again there are women who can be bisexual.”

When Troiani tried to pin him down about when this alleged phone conversation happened, he seemed disappointed she wasn’t enjoying his soliloquy.

“One of the greatest storytellers in the world, and I’m failing,” he told her.

Was he feeling cocky after yet another prosecutor declined to prosecute him? Could he have been performing a little, being a bit braggy? Emboldened even? Perhaps. But he still didn’t admit do doing anything illegal, certainly not to drugging and sexually assaulting Constand (he claimed he gave her Benadryl and what happened between them was consensual). It was just that what he did admit to – giving Quaaludes to women, which he adjusted to a woman, he wanted to have sex with, having affairs –  was shocking to his millions of devoted fans when the deposition became public a decade later. He was America's Dad after all, with a pristine image barely tarnished by scandal after 50 years in the public eye. The fact that it was him saying it, though, is what began turning even some of his staunchest defenders against him. Even then-President Obama weighed in on the scandal after pressure began to build for him to revoke Cosby’s Presidential Medal of Freedom bestowed upon him by former President George W. Bush in 2002.

“I’ll say this: if you give a woman, or a man for that matter, without his or her knowledge, a drug, and then have sex with that person without consent, that’s rape,” Obama said in July 2015. “And I think this country, and any civilized country, should have no tolerance for rape.”

   (There’s more about what Cosby to say about the women accusing him in my book CHASING COSBY. What I couldn’t fit in the text itself I put in the end notes. They’re lengthy, which is why I’m not getting into it here, but I urge you to read them.)

I frequently get asked in interviews if I was surprised by what the Pennsylvania Supreme Court did last summer. In some ways I was but in others, I wasn’t. I’d been watching Cosby beat the system for years (There were 14 women accusing him of drugging and sexually assaulting them, or attempting to do so, in 2005, which I wrote about extensively back then, though nothing ever came of it) so the most surprising thing to me was that he was ever held accountable for any of it in the first place. He did serve nearly three years in prison, which was just shy of his minimum sentence. And, at least for Cosby survivor Tamara Green, there’s some comfort in that, as she told me last June.

   What is harder to think about is the impact the Pennsylvania Supreme Court decision may have on other cases. It basically okays backroom deals between prosecutors and whomever they choose to protect, one of the many reasons there are safeguards saying an immunity agreements has to be in writing and signed off on by a judge, which is the law in Pennsylvania. Castor got around this by proclaiming himself the “sovereign” of Montgomery County at that hearing in February 2016, which he said gave him the power to make his alleged promise not to prosecute binding.

Montgomery County Court of Common Pleas Judge Steven O’Neill didn’t believe Castor, ruling there was no formal agreement. And that’s where that particular issue should have rested because trial court judges are the ones who determine credibility of witnesses on the stand, not appellate courts. The Pennsylvania Supreme Court acknowledged this bona fide legal obstacle even as it tried to get around it by saying even though there was no such promise not to prosecute, Cosby relied on it when he was deposed in Constand’s lawsuit (even though Cosby himself has never said that), which was a violation of his due process rights. Circular logic at its worst. (And let’s not even talk about that bizarre TV interview Chief Justice Max Baer did with a local TV station afterward.)

And the court appeared to accept Castor’s version of events as statements of fact (it almost seemed like he wrote the opinion), even though appellate courts are also required to accept a trial court’s factual findings, so long as it is supported by the record, and the court even said it agreed with O’Neill’s characterization of Castor’s testimony on the issue as “inconsistent” and “equivocal at best.”

”While the [Pennsylvania] Supreme Court stated that it accepted Judge O’Neill’s findings, it appeared to ignore those findings while reaching its own divergent facts concerning the circumstances surrounding Bruce Castor’s decision to not pursue the case,” said McAndrews, the former longtime Pennsylvania prosecutor. “This process by the Court has been seen as quite extraordinary by attorneys who regularly work in the appellate courts.”

    The U.S. Supreme Court could have tried to rectify this miscarriage of justice by at least hearing the case, but it chose not to. (With two of its members accused of sexual misconduct themselves perhaps that’s for the best, anyway.)

   As for Pennsylvania's Supreme Court, I don’t know what was truly behind the decision to overturn Cosby’s conviction. To me, it reeks of special treatment. What I do know is this: It wasn’t based on the law.