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SCOTUS Declines to Review Bill Cosby's Overturned Conviction. Did They Have a Choice?

By Laura Temme, Esq. on March 10, 2022 2:30 PM

The United States Supreme Court recently declined to review a divided Pennsylvania Supreme Court decision to overturn Bill Cosby's 2018 sexual assault conviction.

The Pennsylvania court concluded that Cosby should not have faced criminal charges for drugging and sexually assaulting Andrea Constand in 2004—because in 2005, Montgomery County District Attorney Bruce Castor publicly promised not to prosecute him. Castor has said that he chose not to bring charges so that Cosby could not invoke his Fifth Amendment right against self-incrimination in Constand's then-pending civil case.

Read the Pennsylvania Supreme Court's full opinion and thousands more with a free trial of Westlaw Edge.

The court noted that Cosby relied on that promise to his detriment when he gave testimony during Constand's civil case against him, where he admitted to giving women sedatives. When a new Montgomery County D.A., Kevin Steele, opted to circumvent his predecessor's decision and bring criminal charges against Cosby in 2016, that testimony played a prominent role in his conviction. Pennsylvania Supreme Court Chief Justice Max Baer called the decision a "reprehensible bait and switch."

SCOTUS denied the request for review without any comment, so we can only guess what was happening in individual justice's minds. But could the court have overruled prosecutorial discretion, even if they wanted to?

How Federal Courts Have Approached Non-Prosecution Agreements

A 2016 decision out of the D.C. Circuit held that federal judges lack the authority to "second-guess" deferred prosecution agreements made by federal prosecutors. In that case, the circuit court concluded that a district court's denial of a deferred prosecution agreement violated the separation of powers. But, in 2020, the same circuit court declined to extend that ruling to the case of Michael Flynn.

It's also clear that a non-prosecution agreement that was reached in violation of another statute can be invalidated—as we saw in the case of Jeffrey Epstein. In Epstein's case, the agreement ran contrary to the Crime Victims' Rights Act, which requires prosecutors to inform victims of their rights before entering into a non-prosecute agreement. Prosecutors went along with defense counsel requests to keep victims out of the loop, making the agreement unenforceable.

But much of the Supreme Court case law related to this issue pertains to courts requiring prosecutors to uphold their non-prosecution agreements. In both Santobello v. New York (1971) and Wade v. United States (1992), SCOTUS held that, in the case of non-prosecution agreements made in return for a person's cooperation, the government is bound not to prosecute to the extent the person carries out their end of the bargain. As the Penn. Supreme Court stated in its opinionSantobello and other similar cases stand for the general idea that courts are obligated to "hold prosecutors to their word, to enforce promises, [and] to ensure that defendants' decisions are made with a full understanding of the circumstances."

So it seems Pennsylvania likely knew it was in for an uphill battle when it asked the Supreme Court to throw out the previous "agreement."

Was Cosby's "Agreement" Different?

In 2016, the Montgomery County trial judge rejected arguments from Cosby's defense team that Castor's decision not to prosecute in 2005 amounted to an immunity agreement. The judge argued that "[a] secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn't right." Although, it's hard to call an agreement "secret" when there's a press release about it.

However, the press release itself doesn't read as an agreement. Castor's office merely stated that they couldn't find sufficient credible and admissible evidence "upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt." But Cosby's attorneys claimed that there had been an additional oral agreement between Castor and Cosby's former defense attorney (who had since died), arguing that this supported the reading of the press release as an immunity agreement.

In its petition to SCOTUS for certiorari, the Commonwealth of Pennsylvania argued that Cosby's reliance on the press release was not reasonable because it could be read to mean prosecutors could reconsider charges if they found new evidence. Moreover, the petition points out, the press release also stated, "District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise." The Commonwealth did concede that the Penn. Supreme Court's due process rule only requires reliance to be detrimental, not "reasonable." Nonetheless, the petition argued that the Penn. Supreme Court's interpretation of due process went a bridge too far:

"The Pennsylvania Supreme Court's expansion of the Due Process Clause goes far beyond anything contemplated by this Court. Because it construes the federal constitution, it is poised to transform similar decisions not to prosecute into effective grants of immunity in other states."

In response, Cosby's attorneys argued that the Commonwealth "grossly mischaracterizes" the effect that the Penn. Supreme Court's decision will have on prosecutorial discretion, stating that "[p]rosecutors need only avoid making unconditional promises to suspects with the intent of inducing them to waive cherished constitutional guarantees."

Arguing that the Penn. Supreme Court's opinion was a "fact-intensive decision not in conflict with decisions" from any court including the U.S. Supreme Court, Cosby's attorneys urged SCOTUS to deny cert.

And they did. But unfortunately, we don't get to know why.

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