Broken Promises: The Cosby Court Says It Matters When Prosecutors Don’t Keep Their Word

Last week, the Supreme Court of Pennsylvania vacated Bill Cosby’s convictions for aggravated indecent assault committed in 2004. The Court found that the United States and Pennsylvania Constitutions’ due process protections precluded the Montgomery County district attorney’s office from prosecuting Cosby. Relying on an earlier promise by that same prosecutor’s office that he would not be prosecuted for the 2004 sexual assaults, Cosby waived his Fifth Amendment rights and testified in a related civil case. The Pennsylvania Supreme Court ruled that the district attorney’s office was bound by its promise. Reminding prosecutors that their solemn “obligation is not merely to convict, but rather to seek justice within the bounds of the law,” the Pennsylvania Supreme Court dismissed the convictions. Commonwealth v. Cosby, No. 39 MAP 2020, Slip. Op. at 52. (P.A. June 30, 2021) (quotation marks and citations omitted). That was the only way to remedy the prosecutors’ violation of Cosby’s constitutional rights when they reneged on their word that they would not prosecute him for these crimes.

The decision set the press and public ablaze with outrage. It has been widely described as an affront to Mr. Cosby’s victims, and an abandonment of justice for them. The visceral reaction is understandable. Despite credible evidence that he sexually assaulted numerous women over decades, Bill Cosby will now walk free.

Still, however loathsome his crimes, due process for Cosby matters. He is entitled to the same fundamental Constitutional protections as all criminal defendants. That was precisely the Pennsylvania Supreme Court’s motivation in overturning the convictions—“as a matter of constitutional due process and as compelled by the principle of fundamental fairness, a defendant generally is entitled to the benefit of assurances made by the prosecutor.” Slip. Op. at 53. At “a minimum, when a defendant relies to his or her detriment upon the acts of a prosecutor, his or her due process rights are implicated.” Slip. Op. at 58.

Cosby’s prosecution thus could not stand. “Cosby relied upon [the] D.A.[’s] . . . announcement that he would not be prosecuted. His reliance was reasonable, and it resulted in the deprivation of a fundamental constitutional right when he was compelled to furnish self-incriminating testimony.” Slip. Op. at 71. The Montgomery County D.A. office’s later decision “to prosecute Cosby violated Cosby’s due process rights.” Slip. Op at 72. “Under these circumstances,” vacating Cosby’s convictions was the only way to preserve the constitutional system protecting defendants’ due process rights. Slip. Op. at 73. The Pennsylvania Supreme Court was unequivocal: “neither our principles of justice, nor society’s expectations, nor our sense of fair play and decency, can tolerate anything short of compelling the Montgomery County District Attorney’s Office to stand by [its earlier] decision.” Id.

However gratifying Cosby’s continued punishment would be for his victims and their supporters, it would not serve the pursuit of justice more broadly. As Benjamin Franklin famously said: “it is better 100 guilty persons should escape than that one innocent person should suffer.” Allowing Cosby’s convictions to stand in the face of a flagrant bait-and-switch by the D.A.’s office would only further erode constitutional protections for other individuals facing similarly unconstitutional predicaments.

Indeed, the problem is already all too common. In federal courts throughout the country, defendants frequently reach plea agreements—waiving myriad constitutional rights, including the most fundamental right to a trial by jury at which the government bears the burden of proof beyond a reasonable doubt—relying on promises that the U.S. Attorney’s Office will not subsequently prosecute based on similar facts. But there’s a catch. These plea agreements typically bind only the U.S. Attorney’s Office in the district where the indictment was brought; federal prosecutors in other districts remain free to prosecute under other criminal statutes for the same conduct as covered in the plea agreement, needing only the slightest nexus to gain venue within their district court’s boundaries.

Individuals thus can, and have, faced prosecution by two separate federal prosecutors’ offices for effectively the same conduct, sometimes even at the same time. It is, for example, precisely this practice that Ghislaine Maxwell’s attorneys have argued taints her prosecution in the Southern District of New York: that the agreement by U.S. Attorney’s office in the Southern District of Miami no to prosecute Jeffrey Epstein or any of his alleged co-conspirators should similarly prelude her federal prosecution in New York. Though each district has a different U.S. Attorney’s Office, they are arms of the same sovereign prosecuting authority, and component parts of a single Department of Justice in a unified federal government. While divergent approaches by separate U.S. Attorney’s Offices may not be technically illegal, it is surely unfair.

Because a “prosecutor has more control over life, liberty, and reputation than any other person in America,” in vacating Cosby’s convictions the Pennsylvania Supreme Court emphasized that “a defendant’s detrimental reliance upon the government’s assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement.” Slip. Op. at 52, 60 (quotation marks and citations omitted). Federal prosecutors would do well to remember their ultimate responsibility to the rule of law in wielding their awesome power over the lives of often hapless individuals ensnared in the criminal justice system. Avoiding practices creating an impression that the Department of Justice is shirking on its deals would serve only to strengthen confidence in our constitutional justice system.

That is why the Pennsylvania Supreme Court had no choice but to dismiss the case against Cosby. Ensuring that our Constitution’s promises of due process and a fair trial remain more than empty platitudes surely outweighs the need for retribution against a single criminal defendant—even one who committed crimes as heinous as Bill Cosby’s.