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Opinion | There’s One Man to Blame for Bill Cosby’s Release

Due process matters, even for monstrous crimes.

The Supreme Court of Pennsylvania made that point clear on Wednesday when it overturned the 2018 conviction of Bill Cosby for aggravated indecent assault. The court held that the prosecution violated Mr. Cosby’s right against self-incrimination by using statements at trial that he made during earlier depositions in civil litigation. The court then made another big statement: The county prosecutor’s office couldn’t try Mr. Cosby again because of its promise in 2005 not to charge him.

The court’s basis for its decision was a highly unusual 2005 news release by Bruce Castor, when he was district attorney for Montgomery County, Pa. Mr. Castor stated that he chose not to file criminal charges against Mr. Cosby because of “insufficient credible and admissible evidence.” The state Supreme Court held that Mr. Castor’s public statements were binding on his successor, who resuscitated the case in 2015. Using Mr. Cosby’s deposition statements against him, the court said, was a “coercive bait and switch.”

While the release of Mr. Cosby is an affront to Andrea Constand, the victim, as well as to the other women who testified against him and to the public, the court was reaffirming the longstanding notion that due process requires the enforcement of prosecutors’ promises. In Santobello v. New York, the U.S. Supreme Court noted that prosecutors’ promises are not limited to the plea context. Any promise a prosecutor makes that induces reliance to the detriment of the defendant may be binding. Here, the court is merely enforcing the promise Mr. Castor made.

When I worked as a federal prosecutor, I was cautious about making promises because I knew they were binding. With rare exception, my office refrained from making promises to decline charges against someone because of the very real possibility that additional evidence of guilt could emerge. Our hands would be tied if the person had relied on that promise in any way. If we agreed to bring no further charges against someone as part of a plea deal, we included in the plea agreement the caveat that the promise was limited to information that was currently known to the government.

As horrific as Mr. Cosby’s actions were, protecting due process rights matters regardless of the crime. As the court stated, “society holds a strong interest in the prosecution of crimes. It is also true that no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” In our criminal justice system, even righteous ends cannot justify unconstitutional means.

If you want to blame someone for Mr. Cosby’s release, blame Mr. Castor. In a 2015 email message, Mr. Castor explained that the purpose of his news release was to assist Ms. Constand in a civil case. By removing the possibility of a criminal prosecution, Mr. Castor was making it impossible for Mr. Cosby to avoid answering questions at a deposition by invoking his right against self-incrimination.

In fact, Mr. Cosby sat for four depositions in the civil case. During those depositions, he admitted to giving quaaludes to women and was aware of the drugs’ effects. He ultimately settled the civil case for more than $3 million. The prosecution offered Mr. Cosby’s deposition statements at trial to corroborate the testimony of other women who testified that he had given them pills to incapacitate them before engaging in unwelcome sex acts, a scheme similar to the one alleged at trial.

It was the prosecution’s use of Mr. Cosby’s own statements that violated due process. The Fifth and 14th Amendments to the Constitution protect individuals from being compelled in a criminal case to be a witness against themselves. Ordinarily, someone who receives a subpoena to testify in a civil case may invoke the right against self-incrimination to avoid both answering a question and providing testimony that could be used against him or her in a subsequent criminal case.

By promising not to prosecute Mr. Cosby, Mr. Castor was essentially letting him off the hook criminally so that he could be vulnerable to civil penalties. It is not the duty of a prosecutor to assist a victim in litigation strategy for a civil case. A prosecutor’s duty is to use discretion responsibly to make decisions about charges. Mr. Castor failed to use his discretion responsibly.

The Pennsylvania court not only reversed the conviction, but also dismissed the case, precluding the prosecution from retrying Mr. Cosby without using his statements. Mr. Cosby may well have still been convicted without the use of his deposition testimony. We’ll never know. In the court’s view, the only just outcome was to protect Mr. Cosby’s rights by enforcing Mr. Castor’s promise.

Even when a prosecutor believes the evidence is insufficient to file criminal charges, he rarely makes a public statement binding himself to that position because that situation is always subject to change. The possibility of obtaining more evidence of a crime makes a commitment against prosecution ill advised. By overreaching to help the civil case, Mr. Castor blocked his successor from sustaining a conviction of Mr. Cosby. And Mr. Castor’s initial decision that the evidence was insufficient to prosecute may be his most egregious error.

Enforcing the constitutional right to due process sometimes leads to awful results. But if the protection is to work for any of us, it must be enforced for all of us.

Barbara McQuade is a professor at the University of Michigan Law School. From 2010 to 2017, she served as the U.S. attorney for the Eastern District of Michigan.

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