by Richard Resch

Introduction

The criticism and outrage at the Pennsylvania Supreme Court’s June 30, 2021, decision to vacate Bill Cosby’s convictions, order his immediate release, and bar any retrial are largely ill-informed or just plain misguided. Those decrying the fact that Cosby got released on a so-called “technicality” apparently believe that fundamental constitutional rights are mere technicalities, or more likely, most are simply ignorant of the actual legal principles and reasoning upon which the Court based its decision. The Court in no way ruled upon Cosby’s factual guilt or innocence. Instead, what it did do was safeguard important constitutional rights that protect us all, from the most sympathetic among us to the wildly unpopular, against government abuse and overreach.

Although the Court took 79 pages to deliver its opinion, the Court’s reasoning and conclusion are fairly straightforward based upon basic contract law principles and the equitable doctrine of detrimental reliance.

Facts

In January 2005, Andrea Constand contacted police alleging that Bill Cosby had sexually assaulted her in his Cheltenham, Pennsylvania, home in January 2004. After reviewing the available evidence, including multiple investigative interviews of Constand and Cosby, then-Montgomery County District Attorney Bruce Castor concluded that “there was insufficient credible and admissible evidence upon which any charge against [] Cosby related to the Constand incident could be proven beyond a reasonable doubt.”

Having determined that Constand would likely be unable to get justice in a criminal proceeding, Castor decided that her best option to obtain some measure of justice was in a civil lawsuit for monetary damages where the burden of proof is less demanding. However, he realized that Cosby’s right to invoke his Fifth Amendment privilege against compelled self-incrimination would likely pose a significant obstacle to success even in a civil suit, so he sought to eliminate Cosby’s ability to invoke his Fifth Amendment privilege by removing the risk of criminal prosecution with respect to the January 2004 incident. Once the risk of criminal prosecution was removed, Cosby would no longer be entitled to invoke his Fifth Amendment privilege when subpoenaed in a civil lawsuit.

Castor subsequently testified in court that it was “absolutely” his intent to remove “for all time” the possibility of prosecution, and acting “as the sovereign Commonwealth of Pennsylvania” in his capacity as the D.A., Castor made the non-prosecution decision with the intent and belief that it would be binding upon the D.A.’s Office in perpetuity. Consistent with his non-prosecution decision, Castor issued a signed press release on February 17, 2005, publicly announcing his decision. Importantly, he conveyed his intent and rationale to Cosby’s then-criminal defense attorney Walter Phillips, who agreed with Castor’s legal conclusion and would later inform Cosby’s civil counsel, John Schmitt, of Castor’s non-prosecution decision and effect on Cosby’s Fifth Amendment privilege.

As a result of the explicit non-prosecution decision, Cosby never invoked his Fifth Amendment privilege and sat for four days of depositions in Constand’s 2005 civil lawsuit against him. He made several inculpatory statements and admissions during the depositions. He ultimately settled the lawsuit for $3.38 million. The case was initially sealed; however, after a media request, the records were unsealed in 2015.

In late 2015, then-D.A. Ferman reopened the criminal investigation into the January 2004 incident upon release of the civil records containing the new, incriminating evidence provided by Cosby in his depositions. Armed with that evidence, Ferman charged Cosby with three counts of aggravated indecent assault for the January 2004 incident involving Constand, despite Castor’s non-prosecution decision.

On January 11, 2016, Cosby filed a habeas petition seeking dismissal of the charges based upon Castor’s non-prosecution decision made in his representative capacity on behalf of the Commonwealth. The trial court denied the petition, ruling that Castor never promised nor reached an agreement with Cosby that the Commonwealth wouldn’t prosecute him in connection with the January 2004 incident. The court treated the interaction between Castor and Cosby as an incomplete and unauthorized contemplation of transactional immunity, which Castor was not unilaterally authorized to grant, and concluded the “press release, signed or not, was legally insufficient to form the basis of an enforceable promise not to prosecute.” Cosby subsequently filed a pretrial motion to suppress the contents of his depositions, which the court similarly denied.

At his initial trial, the jury announced that it was deadlocked on June 17, 2017, so the trial court declared a mistrial. At his second trial, the jury convicted Cosby on all three counts, and the court sentenced him to three to ten years in prison. Cosby appealed, but the Superior Court concluded that there was no error in the trial court’s decision to allow his deposition testimony and evidence derived therefrom to be used against him and affirmed the judgment.

Issue

Cosby appealed to the Pennsylvania Supreme Court. The dispositive issue before the Court was whether the Superior Court erred in affirming the trial court’s decision to allow the prosecution and the admission of Cosby’s civil deposition testimony where Castor’s formal public statement announcing his non-prosecution decision was strategically calculated to strip Cosby of the right to invoke his Fifth Amendment privilege against compelled self-incrimination in Constand’s civil lawsuit, and Cosby reasonably relied upon the non-prosecution decision in providing deposition testimony in the civil action?

Analysis

The Court began its analysis by examining the “legal relationship between D.A. Castor and Cosby,” i.e., whether there was a binding, enforceable agreement. The Court noted that it is not a factfinding body and is thus bound by the trial court’s factual determinations and conclusions, provided that evidence in the record support them. See O’Rourke v. Commonwealth, 778 A.2d 1194 (Pa. 2001). Consequently, the Court stated that it is bound by the trial court’s determination that the parties did not enter into a formal immunity agreement in light of the many factual inconsistencies in the record supporting that determination.

However, the Court observed that it is not similarly bound by the trial court’s “legal determinations that derive from those factual findings.” The question of law presented in this case is “whether, and under what circumstances, a prosecutor’s exercise of his or her charging discretion binds future prosecutors’ exercise of the same discretion,” explained the Court.

It answered that open question by announcing “we hold 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.”

The Court observed that prosecutors are empowered with “tremendous” discretion and authority, and as a result, “our law has long recognized the special weight that must be accorded to their assurances.” For instance, in the context of plea negotiations, the U.S. Supreme Court has held that due process and fundamental fairness dictate that a defendant is generally entitled to the benefit of promises made by prosecutors. Santobello v. New York, 404 U.S. 257 (1971) (“when a plea rests in any significant degree on a promise or agreement by the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”).

The Pennsylvania Supreme Court stated that its position aligns with the U.S. Supreme Court’s with respect to inducements and “the due process guarantee of fundamental fairness.” In Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), the Court declared that “it is well settled that where a plea bargain has been entered into and is violated by the Commonwealth, the defendant is entitled, at the least, to the benefit of the bargain.”

The Court then discussed the application of contract law principles to criminal proceedings, explaining that the “contours and obligations” of interactions between prosecutors and defendants “involve basic precepts of contract law, which inform the due process inquiry.” Importantly, the Court further explained that contract law principles also apply to non-prosecution agreements, not just plea bargains, citing United States v. Carrillo, 709 F.2d 35 (9th Cir. 1983) (holding that fundamental fairness requires a prosecutor to uphold his or her end of a non-prosecution agreement); United States v. Baird, 218 F.3d 221 (3d Cir. 200) (non-prosecution agreements constitute binding contracts that must be interpreted using general principles of contract law but guided by “special due process concerns”); and Commonwealth v. Ginn, 587 A.2d 314 (Pa. Super. Ct. 1991) (non-prosecution agreements are materially similar to plea agreements, requiring the application of contract law principles to prevent prosecutors from reneging on the Commonwealth’s promises and assurances).

Next, the Court discussed the applicability of equitable doctrines to criminal proceedings, explaining that such doctrines can operate to enforce assurances given and promises made by prosecutors even in the absence of a formally consummated agreement under contract law. Dicta from Government of Virgin Islands v. Scotland, 614 F.2d 360 (3d Cir. 1980), is instructive for purposes of the present case. In Scotland, the parties reached a tentative plea agreement, but before the defendant entered a formal plea, the prosecutor added an additional term, which the defendant rejected. The defendant sought specific performance of the tentative agreement, but the Third Circuit refused to enforce it, ruling that the agreement was not formalized and thus was not enforceable under contract law. Instructively, it cautioned that had the equitable doctrine of detrimental reliance been applicable the outcome would have been different, noting that when a “defendant detrimentally relies on the government’s promise, the resulting harm from this induced reliance implicates due process guarantees.” The defendant in the case didn’t suffer harm through his reliance on the tentative agreement because his due process rights were appropriately safeguarded by his right to a jury trial, the Third Circuit explained.  

At that point, the Court summarized its analysis of the foregoing cases by stating that both contract law principles and equitable doctrines can be used “to hold prosecutors to their word, to enforce promises, to ensure defendants’ decisions are made with a full understanding of the circumstance, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Although prosecutors enjoy “tremendous” discretion in making charging decisions, they are “not exempt from basic principles of fundamental fairness, nor can [prosecutorial discretion] be wielded in a manner that violates a defendant’s rights,” the Court warned. See Commonwealth v. Stipetich, 652 A.2d 1294 (Pa. 1995).

[Writer’s note: In the opinion, the Court doesn’t expressly set forth the requirements for the equitable doctrine of detrimental reliance, but a basic understanding of it is helpful in following the Court’s reasoning for its conclusion. With that in mind, the elements are: (1) a promise made by defendant to plaintiff, which defendant expected would induce plaintiff to act, (2) the promise in fact reasonably induces plaintiff to act as expected by defendant, (3) plaintiff suffers or will suffer harm as a result of the induced action, and (4) injustice can be avoided only by enforcing plaintiff’s promise. Rinehimer v. Luzerne Cnty. Cmty. Coll., 539 A.3d 1298 (Pa. Super. Ct. 1988). For our purposes, Cosby is in the position of plaintiff, and D.A. Castor and successors are in the position of defendant. For those interested, the Court does cite numerous cases in which both state and federal courts have applied the doctrine of detrimental reliance to enforce promises made by prosecutors in the absence of a legally enforceable agreement.]

The Court determined that Cosby detrimentally relied on D.A. Castor’s publicly announced non-prosecution decision and that as a result his due process rights were violated. With respect to the first element, it pointed out that the record indisputably demonstrates Castor’s express intent was “to induce Cosby’s reliance upon the non-prosecution decision” and that there’s nothing “to suggest that the decision was anything but permanent.” As to the second element, “the most patent and obvious evidence of Cosby’s reliance was his counseled decision to testify in four depositions in Constand’s civil case without ever invoking his Fifth Amendment rights,” the Court stated. It added that Cosby’s reliance on an elected official’s public declaration and his own attorneys’ legal advice was clearly reasonable. As for the third element, Cosby suffered harm as a result of being stripped of his Fifth Amendment privilege against compelled self-incrimination and furnishing incriminating testimonial evidence during his depositions in the civil case, which was used to prosecute and convict him. The Court concluded that the “decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights.”

Finally, regarding the fourth element, the Court explained: “In our view, specific performance of D.A. Castor’s decision, in the form of barring Cosby’s prosecution for the incident involving Constand, is the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system.” The Court admonished that under the facts of the case “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 the decision of its former elected head…. Anything less under these circumstances would permit the Commonwealth to extract incriminating evidence from a defendant who relies upon the elected prosecutor’s words, actions, and intent, and then use that evidence against that defendant with impunity.”

The Court addressed the Dissent’s argument that the remedy instead should be suppression of the evidence obtained as a result of Cosby’s depositions and permit retrial without that evidence. But that proposed remedy “understates the gravity of Cosby’s harm” and does not adequately address the actual harm suffered by him, countered the Court and explained: “D.A. Castor effectively forced Cosby to participate against himself in a civil case in a way that Cosby would not have been required to do had he retained his constitutional privilege against self-incrimination…. [T]his development significantly weakened Cosby’s legal position. Cosby was compelled to give inculpatory evidence that led ultimately to a multi-million dollar settlement. The end result was exactly what D.A. Castor intended: Cosby gave up his rights, and Constand received significant financial relief…. The consequences of D.A. Castor’s actions include the civil matter, and no exclusion of deposition testimony can restore Cosby’s injuries in that regard.”

Conclusion

The Court concluded that there “is only one remedy that can completely restore Cosby to the status quo ante [previous state of affairs]. He must be discharged, and any future prosecution on these particular charges must be barred.”

Accordingly, the Court vacated Cosby’s convictions and judgment of sentence and ordered him discharged. Commonwealth v. Cosby, 2021 Pa. LEXIS 2761 (2021). 

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