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Why The Pennsylvania Supreme Court Was Right To Toss Bill Cosby’s Tainted Conviction


On June 30, the Pennsylvania Supreme Court tossed the criminal sexual assault conviction against Bill Cosby, concluding that the 2005 decision by District Attorney Bruce Castor not to prosecute Cosby for the alleged sexual assault of Andrea Constand barred Pennsylvania from later charging Cosby with that crime.

Given the avalanche of allegations that the former actor and comedian drugged and then sexually assaulted scores of young women, Wednesday’s decision prompted outrage for many Americans. But, given the court’s ultimate ruling, Crosby was the one improperly crushed by the scales of justice.

In a methodical 79-page opinion released Wednesday, a four-justice majority of the Pennsylvania Supreme Court recounted the allegations underlying the criminal conviction of Cosby on three counts of aggravated indecent assault stemming from a January 2004 incident involving Constand.

Cosby and Constand first met two years prior when Constand, a former professional basketball player, served as a director of basketball operations at Temple University. The two became friendly and stayed that way even after Constand says she had rebuked two sexual overtures from Cosby. Then, in January 2004, Constand claimed that while visiting Cosby at his Cheltenham residence, he handed her three blue pills, calling them her “friends” that would “help take the edge off.”

Constand took the pills, after which she claimed she began experiencing double vision and slurred speech. Later, after Cosby helped her to a sofa, she maintains that she “felt weak and was unable to talk, and “started slipping out of consciousness. “Constand recounted that after coming to, but while unable to speak, Cosby sexually assaulted her,” the opinion notes.

After the incident, Constand says she continued to communicate with Cosby and told no one about the incident for about a year, when she finally told her mother. Soon after, Constand filed a police report with the Durham Regional Police Department. The case was transferred to Montgomery County, where investigating officers interviewed Cosby.

During questioning, Cosby admitted that, after Constand complained she couldn’t sleep, he gave her one-and-a-half Benadryl pills. Cosby also acknowledged fondling Constand, but he insisted that she had not resisted or asked him to stop.

Castor, then the district attorney for Montgomery County, reviewed the case and determined “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.” Caster would later explain that, after concluding he could not win a criminal conviction against Cosby, he contemplated an alternative approach to provide Constand some form of justice—in the form of money damages through a civil lawsuit.

Knowing that so long as the threat of criminal prosecution existed, the Fifth Amendment’s protection against self-incrimination would prevent Constand from forcing Cosby to testify during her civil case, Castor issued a press release stating that no charges would be brought. Thereafter, Cosby testified under oath in four depositions. During those depositions, he made several incriminating statements, namely that in the past he had provided Quaaludes to women with whom he wanted to have sexual relations. Cosby later paid Constand $3.38 million to settle her civil lawsuit.

The record related to Constand’s lawsuit against Cosby remained sealed until a federal judge ordered them released in 2015. After the record was made public, Castor’s successor, Risa Vetri Ferman, decided to reopen the case against Cosby. Later, Kevin Steele replaced Ferman as the D.A. and he then brought charges against Cosby related to the 2004 incident involving Costand.

At that point, Cosby filed a case against Pennsylvania seeking to stop the prosecution based on Castor’s previous decision not to bring criminal charges against him. The trial court, intermediate appellate court, and the Pennsylvania Supreme Court all rejected Cosby’s efforts to stop the criminal case. Thereafter, a jury trial commenced.

During the trial, the state introduced portions of Cosby’s deposition testimony from the civil case in which he admitted using Quaaludes during sexual liaisons with women in the past. Pennsylvania also sought to introduce testimony from other women who claimed that Cosby had sexually assaulted them in the past—too long ago for the state to initiate criminal cases—but the court only permitted one woman to testify at Cosby’s trial. Following the close of evidence, a jury deliberated for seven days but failed to reach a unanimous verdict, causing a mistrial.

The state retried Cosby. At the second trial, the judge permitted five women to testify that Cosby had sexually assaulted them after providing them alcohol, drugs, or both. Those incidents all occurred between 15 and 22 years before Cosby’s alleged assault of Costand. The second jury convicted Cosby on three counts of aggravated indecent assault.

The trial court then sentenced Cosby to a term of three to ten years in prison, and Cosby was denied bail pending appeal. He began serving that sentence in September 2018, but was released yesterday following the Pennsylvania Supreme Court’s decision overturning his conviction.

The four-justice majority concluded that while Castor had not provided Cosby immunity from prosecution, the state had violated Cosby’s due process rights by charging him after the original district attorney committed not to prosecute Cosby in order to force him to testify in Constand’s civil case. The court held that “[i]n light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion comports with the principles of due process and fundamental fairness to which all aspects of our criminal justice system must adhere.”

While Cosby prevailed on appeal, one must wonder if the Pennsylvania courts nonetheless attempted to provide some semblance of justice for Costand and the other women accusing the disgraced star of sexual assault in their handling of the case.

When the new D.A. first filed charges against Cosby, his attorneys sought to prevent the criminal case from proceeding based on Castor’s decision in 2005 not to prosecute Cosby. Yet the Pennsylvania Supreme Court rejected those attempts, even though yesterday the high court relied on that same decision to toss Cosby’s conviction. But that decision came only after Cosby faced two trials and spent nearly three years in prison. Further, the courts all refused to allow Cosby to remain free on bail pending the appeal, ensuring that he spent that time in prison even though his conviction was overturned.

And then there is the way the prosecutors obtained the conviction in the first place: Following the first mistrial, at which the jury was hung, the trial court permitted the prosecutors to present testimony from five of Cosby’s other accusers. In the first trial, only one other woman was allowed to testify, and the jury in that case was unable to reach a unanimous verdict. Nothing changed between the trials to justify allowing five women to testify, instead of just the one.

On appeal, Cosby’s attorneys also challenged his conviction based on the trial court’s decision to admit this evidence of other crimes, but because the court concluded his conviction must be overturned based on Castor’s decision not to prosecute Cosby, the majority opinion did not address whether the trial court also erred in admitting this evidence. However, that did not stop the Pennsylvania Supreme Court from detailing exactly what the five witnesses testified Cosby did to them.

So, while Cosby may have walked out of prison a free man yesterday, the courts saw to it that he endured two criminal trials, at which multiple women testified that he sexually assaulted him—with much of that testimony likely inappropriately admitted—and then the courts allowed Cosby to waste away in prison for nearly three years while his appeal percolated.

Given the overwhelming number of women accusing the former star of sexual assault, America’s sympathies may not favor Cosby, but the Constitution does.