July 2, 2021 – The Pennsylvania Supreme Court made a mockery out of a case that had given sexual assault victims across the country new hope that courts would take them seriously – that is, finally dispensing justice to those who had experienced sexual violence, and marking the beginning of the #MeToo movement. Yet, those hopes were shattered with the new ruling by the Pennsylvania Supreme Court to allow Cosby, the poster child for drugging and sexually assaulting women, to go free. Their reasoning – a promise is a promise. That is, when former prosecutor and district attorney, Bruce Castor – best known for his recent bumbling as defense attorney in the second Trump impeachment trial, made an “unconventional,” “statutorily deficient,” “unwritten deal” that would let Cosby give a tell-all deposition, and avoid prison time. The court reasoned, despite several criminal trials of Cosby and appeals on the very same issue – it ruled that Castor’s rationale was sound. In so ruling, the court deemed it “acceptable” for Castor to make a deal in the unorthodox manner as putting out the declination to prosecute in a “press release” – both unconventional and full of contradictions, leaving the court to try parse and decipher the meaning and intent of Caster’s words.
The PA Supreme Court’s Reasoning…
In the end, Castor’s rationale didn’t matter much to the PA Supreme Court. They held his “press release” to be binding – a deal is a deal was the rationale of the court– and Cosby relied on it – making statements he would not have made had Castor not arranged such a deal. And it didn’t seem to matter to the court that Castor’s supposed rationale, was that he didn’t think he could prove the case of Cosby drugging and sexually assaulting his most recent victim, Andrea Constand; despite the reams of women waiting to tell a similar story of drugging and nonconsensual sexual conduct by Cosby.
So Why would a Prosecutor Make Such a Deal?
According to Castor, he believed that a “tell-all” would be the only way to bring Constand – Cosby’s victim, any justice. That is, trading any potential prison time for Cosby to do a tell-all, accomplished by Cosby waiving his Fifth Amendment right against self-incrimination. Castor states he believed this was the only way to make Cosby account for his misdeeds. But was it really?
The problem with Castor’s rationale, is that Constand’s attorney claimed to never have heard of the deal, even though Castor said they all were privy to it. In fact, Castor’s apparent “deal” is not only convoluted, it is equivocal in its wording – its delivery to interested parties is both unconventional and unsettling. This controversial “deal” was made by way of “press release” that was supposedly issued and signed by Castor for the benefit of the media and the public. Castor claiming he had the authority as “sovereign” – both District Attorney and prosecutor to make the deal and bind the state to adhere to his promise of non-prosecution. His self-referral as “sovereign” should itself be alarming – he believes he need answer to no one.
Even more concerning, is Castor did not even leave open the possibility of extraneous evidence coming in, derived from sources outside of Cosby’s admissions to prosecute him – ever. Curiously, the court does not examine why Castor wanted to do such a deal in the manner in which he did it. Nor why didn’t Castor do the deal in the traditional way – adhering to statute and judicial approval. Something just doesn’t add up…
So Whose Interest was Castor Really Representing?
Most lawyers believe the prosecutor’s job is to figure out if a crime has been committed, and if so, how to prove it. Yet, Castor claims as both DA and prosecutor, he didn’t think he could prove the case of Constand’s sexual assault according to the criminal standard of “beyond a reasonable doubt.” But according to Castor, he wanted a way that the victim, Constand, could be compensated. But that raises the question, why was Castor so interested in providing Constand a way to win a monetary settlement? Seems more than odd that a prosecutor is looking out for the monetary benefit of a victim…which according to court records, does not in fact appear to be the case. And why was Castor pushing transactional (total) immunity – that is to never, ever, prosecute Cosby again, even if new evidence, unrelated to his admissions of guilt surfaced about his attack on Constand? There are too many questions that cry out for answers, yet the Pennsylvania Supreme Court doesn’t appear to be looking for them.
So When is a Promise Enforceable?
According to the Pennsylvania’s highest court, the “promise not to prosecute” is enforceable because it was made, and Cosby relied on it to his “detriment” – making admissions that can and would be used against him in a civil suit. In other words, Cosby held up his side of the bargain – spilling his guts in a deposition – and now the state must uphold its side – that is, not to prosecute. In contractual terms, Cosby accepted the state’s offer by Castor, and in return for the promise not to prosecute – that promise must be upheld. What is troubling, is the way it was done. Castor claims, and the PA Supreme Court agreed, that judge made law, often referred to as “common law” or “case law” gave Castor the power to make a decision that would bind the state – even though it was not according to statutory law, was not put in writing or offered in court before a judge. Yet, this pseudo contract or “quasi-contract” is based upon “fundamental fairness” called Promissory Estoppel. All this means is that Cosby relied on the Castor’s promise not to prosecute – and Cosby did so to his detriment – by making admissions of guilt in his “tell-all” deposition. This is what the court relied upon in making its highly unpopular and dubiously ethical decision to free Cosby.
If There Was a Deal – Then Why so Many Criminal Trials of Cosby?
There are still too many unanswered questions… Why did the court not grant Cosby relief from criminal prosecution and ultimately prison, when his lawyers brought up the issue of a “prosecutorial deal,” once if not twice before? This was certainly not the first go round at bringing up the “deal” or being tried for criminal conduct. Yet, it remains unclear why the court repeatedly ignored Cosby claims of a deal, or why public funds were spent in trying Cosby more than once. The first trial concluded by the jury not reaching a verdict, the second trial concluded with the jury finding him guilty. Perhaps it was the system’s way of making Cosby serve some well-deserved time. But to most observers, the situation presented appears murky, unclear and to say the least, irrational.
The bottom line…
Not only did Andrea Constand NOT get the justice she deserved for suffering through years of torment before this case went to trial in 2015 – she now will have to live with the fact that her predator – a sexual predator, is now free to victimize again. She and 60 women who wanted to testify against Cosby, of how they all were drugged and violated by Cosby using the same mode of operation get no vindication. All wanted to recount how Cosby groomed each and every one of them to gain their trust and confidence: asserting his interest in helping them in their professional careers, a ruse he successfully used time and again to exploit each and every one of them.
So why are Cosby’s Constitutional Rights Respected, When Cosby Didn’t Respect the Rights of his Victims?
The Pennsylvania Supreme Court needs to take a long hard look at their behavior. Not only have they muddied that waters as to what is acceptable method of conducting a plea deal – but they have given countless other predators ideas on how to beat the system – while at the same time maximizing the harm these predators can do to their victims. By their ruling, they are also sanctioning the use of unorthodox plea deals in cases well-beyond the present.
There is no doubt that serial predators such as Cosby will offend again – and the court is complicit in allowing this to happen. Only Cosby’s age and bad publicity may slow or stop Cosby – as many impressionable, unsuspecting “would be” victims will now be “publicly” on notice as to his modus operandi, and will hopefully avoid him at all costs.
Whatever the case, this is a sad day for victims of sexual violence. What must happen now, to bring Cosby down, is for other victims to stand up. Across America, Cosby has left a wake of victims that must now be heard. And in the states where the statute of limitations has not yet run out – his victims must now line up to be heard. In addition to any criminal prosecutions, with enough civil suits across multiple jurisdictions, Cosby will certainly be out of money and will no longer be able to afford the best defense that money can buy. And if criminal prosecutions can be had, more power to them. There is no doubt, when the flurry of lawsuits begin, Cosby will claim he is the true “victim.” But multiple lawsuits will no doubt help draw-down his funds, and as a consequence, lessen his ability to have multiple lawyers to defend his actions.
Now is the Time…
The time is now for those who have been victimized around the nation to bring Cosby down. Hit him in the pocketbook. And then, maybe then, his victims will get true justice – and the satisfaction of bringing down a serial predator. Emptied pockets will certainly disincentivize the Bruce Castor’s of this world and those like him for rallying for Cosby. or ever lifting him up.
© Copyright 2021, Mary Kay Elloian, Esq. All Rights Reserved.
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