On Cosby and Your Civil Rights

Bill Cosby in 2011. By The World Affairs Council of Philadelphia — The World Affairs Council and Girard College present Bill Cosby, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=107161496

What happened at the Pennsylvania Supreme Court has to be put in the context of your rights. The American Justice system might have worked, even if I do not like the result. Let me explain. The County District Attorney came to an agreement with the defendant. There would never be criminal charges, but in exchange for that agreement, Bill Cosby had to open up. There was no fear of self-incrimination at the criminal level. It is in the Supreme Court Decision, literally in the opening paragraphs.

Seeking “some measure of justice” for Constand, D.A. Castor decided that the Commonwealth would decline to prosecute Cosby for the incident involving Constand, thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.2 Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the district attorney’s declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.

D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s reliance upon D.A. Castor’s decisionCosby’s sworn inculpatory testimonywere then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial. We granted allowance of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in exchange for his testimony must be enforced against the Commonwealth.3

Now, there are a few things here. Bruce Castor entered into that agreement because he did not believe he could get a conviction short of a confession. According to the court, there was no forensic evidence. That his successor ran on prosecution and filed literally days before the terms ran, is significant.

We watched the trial happen and we also watched this evidence, obtained in civil depositions, enter into evidence. In reality, Bill Cosby would have used the fifth to avoid self-incrimination if he believed this was heading to trial. Instead, he believed that this evidence would never be used against him in a criminal trial. This agreement meant that he had to open up.