The Supreme Court of the Commonwealth of Pennsylvania’s decision to vacate the conviction of Bill Cosby and discharge him is a stunning rebuke of the prosecution. Not only is his conviction reversed; the Commonwealth cannot try him again for the sexual assault of Andrea Constand. Why? The prosecution violated Mr. Cosby’s right to fundamental fairness.
Question: What will Pennsylvania pay Mr. Cosby money damages for this miscarriage of justice?
Here’s what happened.
Ms. Constand waited until 2005 to complain to law enforcement officials about a 2004 assault she claimed took place. By the time the case found its way to the desk of prosecutors, the prosecution decided it was not persuasive enough to convince a jury. Then Montgomery County District Attorney Bruce Castor decided not to press charges.
But Castor was troubled by the allegations. He apparently supported a decision by Ms. Constand to pursue Mr. Cosby for money damages. A deal was struck apparently between the Commonwealth, attorneys for Cosby and civil lawyers for Ms. Constand: The Commonwealth would agree not to prosecute Mr. Cosby – ever. Because he was not facing prosecution, he could not refuse to testify in any civil case on grounds that he might incriminate himself – you can’t face criminal prosecution if the state cuts you a pass. He’d be fair game for Ms. Constand.
(A primer on the Fifth Amendment right to avoid self-incrimination. You cannot be compelled to testify in a proceeding, any proceeding, if your testimony tends to incriminate you. Even admitting that you were in the same room as a complainant is incriminating. If you have been granted immunity by the state, then you don’t face prosecution, and you cannot assert the fifth amendment.)
So Ms. Constand sued. Mr. Cosby was deposed four times. Ms. Constant agreed to settle the case against Mr. Cosby for about $3.3 million.
Years later, different prosecutors went ahead and charged Mr. Cosby anyhow. When challenged about this decision, and the Commonwealth’s decision to use Mr. Cosby’s deposition transcripts in the civil case against him in a criminal trial, a judge held that the prior deal was no deal at all. It was vague, and, besides, only a judge can grant immunity on application of a prosecutor. A handshake deal is no deal at all.
The Pennsylvania Supreme Court rejected that tawdry reasoning.
Mr. Cosby is a victim of bad lawyering. The prosecution may not have had the right to make an informal grant of immunity, and Mr. Cosby’s lawyers ought to have demanded something more than a press release as proof of the Commonwealth’s intention never to prosecute. One gets the impression that the lawyers involved were star-struck, and that otherwise good lawyers were asleep at the switch because the case involved a defendant who was larger than life.
But a deal is a deal. And the prosecution induced Mr. Cosby to waive fundamental rights. The Supreme Court upheld that right and called out the Commonwealth for what looks like double-dealing deceit. Mr. Cosby’s been set free.
I say the Commonwealth should pay him for this outrage.
But can Mr. Cosby succeed in a suit?
Three potential barriers are almost insuperable: Sovereign immunity, prosecutorial immunity and qualified immunity. Candidly, I hope he files suit so that these forms of immunity can be challenged, if necessary to the U.S. Supreme Court.
What is an immunity? Consider the rule of law as akin to a board game. The rules say what the various tokens on the board – you and me – can do in life’s game. An immunity removes a piece from the normal rules. You can’t sue a person; their behavior is beyond the reach of the law. Three immunities stand between Mr. Cosby and recovery from the Commonwealth: sovereign immunity, prosecutorial immunity and qualified immunity.
First, sovereign immunity. You cannot sue the government without its consent if you are seeking money damages. Period. This is an arcane piece of federal and state law smuggled into the Constitution at the time of our founding. There is no justification for it in the constitution; indeed, it is inconsistent with the entire ethos of the constitution. The sovereign does err. When, as here, it errs fundamentally, it ought to pay. How is it that the government can bleat about holding people accountable yet refuse to be accountable itself?
Prosecutorial immunity is a difficult nut to crack here. The Supreme Court has crafted a doctrine that holds prosecutors for the decisions that they make in performing their prosecutorial function. The decision to charge or not to charge a crime is a classic example of an immune decision. In the Cosby case, a court would have to conclude that there is an outer limit to this functional analysis. Some decisions are so unjust that immunity is shed by operation of law. The decision to breach the deal it struck with Cosby is a perfect fact patter to challenge the outer limit.
Qualified immunity gives the benefit of the doubt to state employees or state actors acting under color of law. In the Cosby case, any individual defendant will claim that the law wa unclear when they acted, and they should not be sued. There was, after all, a dissenting opinion in the Supreme Court decision freeing Cosby. If judges don’t agree on the law, how can the law be clearly established. The U.S. Supreme Court has expressed a willingness to consider the constitutionality of qualified immunity in the right case. The Cosby case could well be that case.
I am hoping Cosby brings it. But if he’s 83, and life is short. It may be the wiser course to let the past be the past. For the sake of the nation, I hope Cosby sues.