So, why is America's Perverted Dad out of jail - and should he be?

What, no fascism report today? Coming soon. But, today . . . someone most of us consider a rapist is now free (although he served a few years), and why we should be glad. 

Tough call, but ultimately, but I agree with the 7 members of Pennsylvania's high court who have not only tossed Cosby's conviction, but also made sure he will not be prosecuted again. Not that they were doing his bidding, and he has no rational reason to feel vindicated (he seems to think so), but they put law over public opinion, something I don't, for example, think that every judge does by a long stretch. E.g., the Judge in Chauvin gave him a sentence based on appeasing rioters, in my view, and not based on commonplace standards for a conviction for a non-intentional murder. 

Cosby seems very guilty to me, if not of this particular case (I do not think I could have voted for a verdict that he assaulted the victim against her will, beyond a reasonable doubt (see below, for why), even with the testimony of the five other women who claim he assaulted them. Naturally, he's not going to be tried in those other cases as the statutes of limitations have all expired, but, it is hard to believe that the 60 women who have no reason to step forward against a beloved non-political figure, especially, as he mentored and helped some and even more so, they are in many cases older, even grandparents and they can have no benefit from doing this. 

But, this decision was about law, not feelings or outrage and I am glad to see it whenever it happens, even if someone we think is guilty goes free. Right now our country is undergoing an upheaval by those who cry for "justice" without ever saying what it means, and pretending they are victims and others (including tiny children due to their skin color). I know that very few people will read the decision, which is really long and thorough (sometimes repetitive) and also am aware that the media, almost all of it, tends to treat these matters politically or for news shock, and not legally. Sometimes I watch entire trials (Chauvin, Zimmerman, Kennedy Smith (that was the Kennedy heir rape case in Florida, which I think it was the first one on Court TV). I did not follow the Cosby case closely and if it was on tv, I did not watch it. Here, I am completely following the court's rendition, which I have not heard criticized, at least. When I review these court cases, what I most want to do is try and cut out legal mumbo-jumbo and make it more understandable for non-professionals (almost most literate people, could read and understand the whole thing, if only they would). But, because this is about a sex or violence, however you like it, and, let's face it, people don't mind reading about this, I can give you some detail without scaring you away.

What and when happened?

Andrea Constand claimed that Cosby assaulted her in 2004. She did not make the complaint until a year later, during which time she remained a friend of his.  The County District Attorney was Bruce Castor. After investigation, he concluded that because she did not file her complaint for a long time and because there was no forensic evidence and he believed that in all likelihood the testimony of other potential victims would not be allowed, without a confession, "there was insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt."

They met in 2002 in connection with Temple University, where she had gotten a job. It's a school with which Cosby was well connected. She soon after came to his home and when he came into the room later  (I don't get this part - she ate dinner alone???), he sat next to her on the couch and put his hand on her thigh. "Constand was not bothered by Cosby's advance." The next time she ate dinner there (again, alone???), he came back in to have a conversation. He sat next to her and he tried to unbutton her pants (I'm not Casanova, but I think maybe you first try for a kiss or to hold hands). She bent over to stop it and he did. She figured he got the message.

She next met him at a casino, where they had dinner and he walked her to her room. He invited her to his room for dessert. She sat on the bed's edge while they talked (they usually talked about her desire to be a sports commentator or Temple sport) and he then lay down next to her and fell asleep. She believed this was another sexual overture (although, again, I don't get it) but still thought of him as a mentor and was not intimidated.

She left her job and became a masseuse and went to his house to speak about it. She noticed that there was a glass of wine and one of water on the table. At first she didn't want to drink (empty stomach) but finally did when he insisted. Let me quote from the case for the next part:

"At one point, Constand rose to use the restroom. When she returned, Cosby was standing next to the kitchen table with three blue pills in his hand. He reached out and offered the pills to Constand, telling her that the pills were her “friends,” and that they would “help take the edge off.” Constand took the pills from Cosby and swallowed them. The two then sat back down and resumed their discussion of Constand’s planned departure from Temple."

Now, stop one second. Why, in the world, would you (the person who is reading this) put pills in your mouth when you didn't know what they were? Why would you put them in your mouth unless you were used to taking unprescribed drugs. Even as an irresponsible young man, even a beautiful woman offering them would not have made me take them unless I was sick and they were over-the-counter. 

Of course, wine and antihistamines - apparently what they were - are very potent and make even strong drinkers react with dizziness, sleepiness, slur their speech, loss of consciousness and all the qualities of a really drunk person. I've never experienced it (antihistamines alone does that to me), but I've seen other people get completely zonked. I think most intelligent people know its dangerous. Eventually she realized he was fondling her breasts and penetrating her with fingers. Sorry to be graphic, but that is the assault. But, when she awakened, she found her bra out of place and pants unzipped. He was standing in the doorway after she prepared to leave. He told her he had tea and a muffin for her. She had a little and left. Of course, that part is mostly her version.

They continued to talk and be friends. She went out to dinner with him once and then back to his place. He was evasive as to her questions about the pills and what he did. I have to admit, I was curious here and the court really gives no explanation? Why did she keep being friends? Why did she go to dinner with him and then back to his house? She left. We can't tell from the decision if it was in a huff. 

She moved back to Canada a few months later. In January 2005 Cosby came to Toronto and invited her and her mother to a show. That same month she bolted awake, crying and called her mother to confide in her and give her advice. They contacted Canadian police and sought legal counsel in the U.S. She filed a police report, also in Canada. She and her mother placed a call to Cosby to confront him. He said he would tell her after he checked what the blue pills where and "vaguely apologized." He denied to her mother having sexual intercourse with her daughter.

Later, Constand called back and recorded the call. Cosby offered to continue assisting her in a career in sports broadcasting. He also said he would pay for her to continue her education. He wanted to meet personally and said he would have someone set it up. He again refused to say what the pills were.

Constand then got two calls from Cosby reps. The first was an assistant to set up dinner for the three (her mom too). The second was from Cosby's lawyer who said Cosby wanted to set up a trust for her. She declined the first offer and didn't answer the second call. The Canadian police referred the matter to the Philly police.

Montgomery County Dist. Attorney Bruce Castor issued a press release saying Cosby was being investigated for sexual assault (I thought these things were private). Cosby answered written questions while represented by two well known attorneys. Here's his version (the court's summary of that night):

"Constand ingested the pills, they kissed and touched each other on the couch. Cosby admitted that he touched Constands breasts and vagina, but he insisted that she neither resisted nor told him to stop. Additionally, Cosby told the investigators that he never removed his clothing and that Constand did not touch any part of his body under his clothes. Cosby denied having sexual intercourse with Constand and disclaimed any intent to do so that night. In fact, Cosby claimed that the two never had. Cosby admitted that he told Constand and her mother that he would write down the name of the pills and provide them that information, but he acknowledged that he never actually did so. After the interview and without being asked to do so Cosby provided the police with pills, which laboratory testing confirmed to be Benadryl."

Castor was troubled by her not filing a report quickly because it "diminished the reliability of any recollections" and made forensic evidence impossible. He found it atypical behavior between a complainant and a predator. They searched his residence but could not find confirming evidence. He concluded "there was insufficient credible and [so admissible evidence . . . [such that no] could be proven beyond a reasonable doubt."

Castor however, was hardly on Cosby's side. Personally, I thought this was wrong, since he had doubts himself, but also because he was a public officer and his job should not be to try to help one person against another outside of prosecuting crimes. But he decided to intervene, thinking a private suit would be her best bet. He decided to announce that Cosby would not be prosecuted so that in a civil suit he would not be able to rely on the fifth amendment right to silence (only avail so that people's testimony does not make them criminally liable). 

While recognizing that many or most of you already know the following, in case that seems like the legal mumbo jumbo I am trying to avoid  - we have a Constitution put into place in the founding era of our country, that is above all other law in our country. It was soon amended to include a list of rights individuals had. This included the right not to incriminate oneself. It was much later extended to not just federal prosecutions, but to state prosecutions (such as in the Cosby case). It means that someone doesn't have to testify if they feel it might be used to incriminate themselves. We all have this right even if we are or feel innocent. But, there are times when it cannot be used.

Former D.A. Castor later testified, in part:

"So the way you remove that [the fifth amendment protection] is --if you want to, and what did in this case--is I made the decision as the sovereign that Mr. Cosby would not be prosecuted no matter what. As a matter of law, that the made it so that he could not take the Fifth Amendment ever as a matter of law."

It was not an agreement (although Cosby's attorney agreed that it meant if subpoenaed to testify in a civil case, he couldn't raise the defense). 

Castor issued a press release that stated (very brief summary), that both Constand and Cosby cooperated, that the investigation included interviewing other people who claimed Cosby had behaved similarly with them - but none which were ever made into a criminal complaint, that he did not believe a case could be made out beyond reasonable doubt, but as a civil case was still possible, he was not giving an opinion as to credibility of anyone (I don't think he should anyway) but would reconsider "this decision" if he felt he needed to later on.

That last bit about reconsidering "this decision" became very important later on, as you will see. Less than a month after the press release Constand filed a civil case in civil court. Cosby's civil case attorney had learned about the non-prosecution from the criminal case attorney. He understood also that because there was not going to be a prosecution, Cosby could not raise the fifth amendment right not to testify. So, not once during the civil case and the four depositions Cosby sat through, did he or his attorney raise the defense. 

Cosby's version as seen through the depositions differs from Constand and is told in a way that but for the other women who testified, I doubt he would have been convicted (possibly not prosecuted either). Cosby admitted to romantic interests in her, but did not tell her so. He always initiated the personal meeting and home visits. They had sexual activity three times, including the last. The pills were Benadryl, which he was familiar with as he used them to put himself to sleep. When she came to his house in January she was "stressed, tense, and having difficulty sleeping" so Cosby gave her three half pills to relax while they were in the kitchen. She didn't ask what they were and he didn't tell her. He suggested they go into the living room, where she sat next to him and they began kissing and fondling. They lay on the couch where he touched her in the way she later complained of, and after telling her to get to sleep, he went up to his own bedroom. Two hours later he came down and found her awake. He brought her back to the kitchen where they had tea and a muffin.

He also admitted not wanting to tell Constand's mother what the pills were because "he did not want Constand's mother to think that he was a perverted old man who had drugged his daughter and because he had a feeling they were recording the calls. 

Cosby also admitted that he had provided Quaaludes (if unfamiliar to you, it was a nervous system depressant widely used when I was growing up in the '60s-'80s - and, no, not me) to other women with whom he wanted to have sex in the past. The case settled for 3.38 million but the settlement and depositions were sealed until 2015 following a media request.

Castor was no longer D.A.* His first assistant, Risa Vetri Ferman, was now the D.A. She resumed the investigation.  When Castopr learned what Ferman had done so, he sent her an email to which he had

Castor was D.A. in Montgomery County, Pa. from 2000-2008. He had many other similar positions including as Solicitor General and Attorney General of Pennsylvania. He's a highly regarded attorney. He also represented Trump in the second impeachment trial. I'll also note in passing that Constand also sued Castor for defamation and that there was a confidential settlement thereafter. No idea if there was a payment included or what it was.

attached the 2005 press release. He restated his position that Cosby couldn't be prosecuted. He also said he believed that if Cosby was prosecuted that he would have a lawsuit against the County and her personally. She replied by letter that it was the first she had learned about a binding understanding between the Commonwealth and Cosby. Oddly, in his reply, he ended with "Naturally, if a prosecution could be made without using what Cosby said (in his civil case depositions), or anything derived from what Cosby said, I believed then and continue to believe that a prosecution is not precluded. However, you will see below, he explains why he said it.

Ferman's team pressed forward anyway, including with Constand's cooperation, "even though she had specifically agreed not to do so as part of the civil settlement." 

About a decade after Castor's decision not to prosecute, one was filed charging Cosby with three counts of aggravated indecent assault. Cosby made a motion (called habeus corpus) to set aside the prosecution because of Castor's promise not to prosecute. The trial court denied that motion stating that the record indicated no agreement had been made between the Commonwealth (that is, Pennsylvania) and Cosby, but only prosecutorial discretion not to prosecute (note, prosecutors have tremendous latitude in deciding what to prosecute or not). 

In making its decision, the trial court included Castor's testimony that he intended his decision to be absolute. But, then it pointed out that his press release stated, "District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise." However, by including this statement in the paragraph about the Civil Case, he was advising "the parties that if they criticized his decision, he would contact the media and explain that Ms. Constand's actions damaged her credibility, which would severely hamper her civil case." However, she noted that in an article to the Philadephia Inquirer, he said that he put it in there to indicate that if "any evidence surfaced that was admissible I would revisit the issue."

Though Castor, said the trial judge, was sending a message to the media, to the litigants and to the legal community in general (again, how this is his job as a prosecutor, I couldn't tell you). 

The trial court also noted that Mr. Castor testified that he intended to "confer transactional immunity" upon Cosby, meaning he couldn't be prosecuted for the acts of that day at all, and was doing so by virtue of his as sovereign derived from the common law. There was no "agreement." It was also pointed out that Constand's attorney's also testified that they only learned of the press statement from a reporter, that they had asked for nothing and believed that Cosby's own statements to the D.A. prevented him from raising the Fifth Amendment defense, and, even if he succeeded, the jury could be told that (since it was not a criminal case), they could infer his guilt from that and they would only have Constand's version anyway. She did not take Castor's statement that he might revisit to mean anything other than he might prosecute later on, and not a threat not to criticize him. In the settlement, Constand agreed not to initiate a a criminal complaint (you have to wonder, why did Cosby's attorney's want this if they thought there was an absolute promise not to prosecute?)

It gets murkier though. When asked why he ended his correspondence with the new D.A. (his former assistant) he said that Cosby could be prosecuted without the depositions, he stated that he meant "only if other victims were discovered, with charges related only to those victims, and without the use of Cosby's depositions in the Constand matter."

In the end, the trial court decided that Castor did not have authority to convey transactional immunity on a person as the sovereign, that he should have followed the statutory plan for immunity (applying to a court), and that his testimony was equivocal as to the immunity he intended.

There were actually two Cosby criminal trials. In the first one, they picked jurors from another county, though held the trial in Montgomery County. The court allowed only one other woman who claimed Cosby treated her in like fashion to testify, and the jury found it could not reach a decision (thus, a mistrial). 

At the second trial, the prosecutors sought to include the testimony of 19 women who would claim similar acts by Cosby, ranging from fifteen to twenty-two years prior to the charged crime. The trial court increased the number of other women who could testify to five of the nineteen. The Supreme Court* noted here that there had been no change of circumstances for this decision to increase the witnesses. Although in the end, they did not decide whether this was right or wrong, I think it hinted that it had a problem with the decision. I will say, if you want to find the court's decision, a summary of the five's testimony is given and after reading it, you will have no sympathy for Cosby, unless you decide all of them (and all the others) were being untruthful. As I said earlier, I think he's a rapist. Although evidence of "prior bad acts" is always problematic in criminal law, I think the trial judge did a good job of considering the factors, and agree that remoteness in time is only one factor. 

*Unless I state I mean the Supreme Court of the United States, what I mean herein when I say "Supreme Court," is the highest court in Pennsylvania, which also uses that name.

Cosby was convicted after the second trial. He received 3-15 years as a sentence. That means, with good behavior, he could be paroled after the second year. He has been non-repentant, saying that even if it hurt his chances for parole, he would state what he thought. In fact, only about a month before the Pa. Supreme Court decision, he was denied parole for refusing to participate in the sexual offender's program while imprisoned.

Needless to say, he appealed. Though there was an intermediate court (Superior Court) decision in which the prosecution prevailed, I'm just leaving it out because, frankly, nobody wants to read that much, even though that it was what was actually appealed. Suffice to say it agreed with the lower court. Onto the Supreme Court reasoning.

Cosby appealed two issues. The first was whether the "allegations of uncharged misconduct involving sexual contact with five women (and a de fact sixth) and the use of Quaaludes should have been admitted given they dated as far back as the 1970s, and so forth. The second was whether Cosby could rely on D.A. Castor's decision not to prosecute and therefore should not have been prosecuted (nor the civil depositions used if he could be).

Actually, the court did not decide the first issue at all because in deciding he should not have been prosecuted, the evidentiary issues didn't matter anymore. It's just about Castor's decision.

Remember, the lower court that tried Cosby decided that what Castor did was a "failed attempt to reach a statutorily prescribed transactional immunity agreement. Second, the court concluded that the former district attorney's testimony regarding the legal relationship between him and Cosby was inconsistent and 'equivocal at best." 

The Supreme Court, looking at the record, decided that the record actually did not contradict D.A. Castor's testimony and that the D.A. and Cosby('s attorneys) never contemplated an immunity agreement and it was really just an exercise of the D.A. conferring transactional immunity (the whole shebang - Cosby could no longer be prosecuted) based on Common Law (that is, judicial law or decisions established over time and not an act of the legislature). What that means is according to the law of Pennsylvania, not written by the legislature, but as decided by judges, the D.A. as the representative of the sovereign state, has authority to decide not to prosecute someone. 

Unfortunately, then the Supreme Court says that there is some support in the record that his testimony was inconsistent and equivocal (it could mean either), which makes it a little confusing. The Supreme Court decided it was bound by the lower court's decision of the fact that there was no agreement between the D.A. and Cosby and also that there was no formal immunity agreement. However, they are not bound by the lower court to determine what legal effect it all has. It is a question of law as to whether Castor's decision binds future D.A's.

Prosecutors wear several hats, though it does not always seem so the way they behave. They are officers of the court, advocates for victims and administrators of justice. In other words, they just can't always try to convict but have to "seek justice within the bounds of the law." Frankly, in real life, prosecutors see these two things as the same. Convicting equals justice. That's why we have courts.

The court also noted the tremendous power of prosecutors, how more than any other person they have the power over people's freedom and tremendous discretion. Even the Supreme Court of the U.S. rarely ever interferes with a charging decision.

Because of this tremendous power, it "has long been recognized the special weight that must be accorded to their assurances." So, for instance, if in a plea deal, if the prosecutor makes a promise, the promise must be fulfilled (which is why they are often careful not to promise unless the court agrees). That the promises are fulfilled are part of our constitutional right to "due process." 

The Supreme Court believed that the press release was unequivocal. The trial court thought that Castor's statement cautioning "all parties to this matter that (Castor) will reconsider this decision should the need arise" meant it was not unequivocal (remember I said earlier this would be important), but that was forgetting that this sentence came in the paragraph about a civil action and not discussing the matter in public. 

Because he made these statements and because Cosby and his counsel relied on them in not refusing to testify because it might incriminate him), it became a matter of due process. The importance of the right not to incriminate oneself and due process is so great, that sometimes we even let criminals go free. And, that's what happened here. "Cosby did not invoke the Fifth Amendment before he incriminated himself because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].”

Moreover, it was entirely reasonable for Cosby to rely on his attorneys advice and therefore weakening his right to counsel. "To hold otherwise would recast our understanding of reasonableness into something unrecognizable and unsustainable under our law." Defendants would have to disbelieve their own attorneys and the word of the D.A.   

Now, what to do about it. Two judges dissented and it was argued that if the court overturned the decision it should let them try Cosby a third time. But, it's too late for that. The only reasonable remedy for Cosby giving up his right not to incriminate himself with testimony and for relying on what Castor promised, is to do what Castor intended, bar any future prosecution of Cosby in Pa.

At the end of the day, the court ruled 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."

That's it. Sorry if it was long, but I didn't want to leave out anything fundamental to the decision. I personally don't think that I would have found Cosby guilty in this one case, because of the year of a continued personal relationship. I understand how this could happen to someone who is abused, but it is sad because it does almost always raise reasonable doubt in fair minds. For the sake of argument, presuming that Constand was abused and feels that justice was not served, I feel horrible for her, as I do believe all those other women (at least many of them) are not lying.  She may be right. Probably she feels betrayed by the justice system. Maybe I would too. And, obviously, some justices agree with her.  But, in fairness, these cases must be decided by those who do not have a stake in them.