The conclusion of Bill Cosby’s long-running assault case is not so much vindication for Cosby as it is a vindication of the right to due process. More than a decade ago, a district attorney investigating one of the many sexual assault claims against Cosby determined that there was insufficient evidence to prosecute him. But that district attorney had an alternative to criminal prosecution. He believed that Cosby’s testimony could be compelled in the accuser’s civil suit if there was no chance such testimony would run afoul of Cosby’s Fifth Amendment privilege against self-incrimination. So he made a public announcement that the case against Cosby was closed.
Cosby’s accuser filed her lawsuit, and Cosby was then forced to give testimony. After all, he had been publicly assured that the criminal case was resolved. In the course of that testimony, he confessed to having, in the past, provided sedative drugs to women he wanted to have sex with. Years later, that inculpatory testimony would then be used by a new district attorney, who successfully brought criminal assault charges against Cosby.
This, the Supreme Court of Pennsylvania held, cannot stand. “We hold that, when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.” The court, therefore, vacated Cosby’s convictions and sentence. Cosby was out of the prison where he had been serving a minimum three-year sentence on the same day.
This is good news for defendants in Pennsylvania, who can benefit from the court’s broad pronouncement. A defendant is entitled to relying reasonably on promises a prosecutor makes, including, as here, an assurance made in a public press announcement. Of note, an agreement between a prosecutor and a defendant is not even required; it is enough that a prosecutor makes an assurance to a defendant that the defendant then relies on to his detriment.
Holding prosecutors to their word incentivizes defendants to regard prosecutors as truthful. It also conveys the sorely needed impression that the criminal justice system should be fair to individuals who are accused of crimes. Prosecutors have enormous discretion in determining whether criminal cases will go forward. Criminal defendants have enough to worry about without also having to wonder whether prosecutors are lying to them about the resolution of a criminal matter.
Vacating the convictions and barring any future prosecution for the incident involving the woman who brought the civil suit is strong medicine. It probably does not feel like justice for Cosby’s accuser. But Cosby lost the benefit of his fundamental constitutional privilege against self-incrimination. That deprivation, which was specifically sought by the district attorney, does not come without a cost. And that cost is that a man who is credibly accused of sexual assault walks free.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Virginia.
