Bill Cosby speaks to reporters outside of his home on June 30, 2021 in Cheltenham, Pennsylvania. Bill Cosby was released from prison after court overturns his sex assault conviction. (Photo by Michael Abbott/Getty Images)
The Commonwealth of Pennsylvania on Monday asked the Supreme Court of the United States to take up a failed case against ex-actor Bill Cosby. The issue in the case, when framed by the Commonwealth, is whether a press release became binding on prosecutors when it announced that announced Cosby would not be charged criminally with sexual assault. The press released contained somewhat of an escape clause for prosecutors which the Commonwealth says is critical to understanding the issue. The Commonwealth summed up the question — oddly enough — with quite a few facts preceding the question:
QUESTION PRESENTED
The District Attorney of Montgomery County, Pennsylvania, issued a press release announcing that his office would not file sexual assault charges against William H. Cosby because there was “insufficient credible and admissible evidence” to prove Cosby’s guilt beyond a reasonable doubt, so “a conviction under the circumstances of this case would be unattainable.” The press release also stated that the District Attorney “cautions all parties to this matter that he will reconsider this decision should the need arise.” Several years later, after Cosby made a series of inculpatory admissions in civil depositions, a new District Attorney charged Cosby with the same crimes, and he was ultimately convicted.
THE QUESTION PRESENTED IS:
When a prosecutor publicly announces that he will not file criminal charges based on lack of evidence, does the Due Process Clause of the Fourteenth Amendment transform that announcement into a binding promise that no charges will ever be filed, a promise that the target may rely on as if it were a grant of immunity?
“The Pennsylvania Supreme Court discharged Cosby’s criminal case with prejudice under the Due Process Clause,” the Commonwealth continued further on in its application to the U.S. Supreme Court. “It concluded he had relied, to his detriment, on a press release in which the prosecutor declined to file charges years ago. Purportedly believing that the declination immunized him from future prosecution, Cosby provided evidence relating to the crime in subsequent civil litigation. That evidence was (unintentionally) incriminating and led the state to file the charges it had previously decided not to pursue due to lack of evidence.”
“But as the dissent of Pennsylvania’s former Chief Justice concluded, Cosby’s reliance on the press release, whether real or not, was not reasonable,” the Commonwealth continued. “The press release said that no charges would be filed, not that they would never be filed, and indeed, it could be read to say that the prosecutor could reconsider if new evidence was found. For Cosby to provide such evidence in supposed reliance on a vague press release may well have been detrimental — but it was not reasonable.”
The Commonwealth then accused its own Supreme Court of attempting a “drastic expansion” of the Due Process Clause “far beyond anything contemplated” by SCOTUS. It raises the specter that “similar decisions not to prosecute” may suddenly be transformed “into effective grants of immunity in other states.”
After reciting the facts of the case in detail — facts that have long been in the public record — the Commonwealth continued by re-stating the core issue presented several times over again in the application:
Sometimes in criminal investigations, the prosecutor announces a decision not to file criminal charges. This happened here: In 2005, District Attorney Castor issued a press release stating, in part, that he found “insufficient, credible, and admissible evidence” to prove Cosby guilty of the sexual assault of Andrea Constand. The issue here is whether the Due Process Clause of the Fourteenth Amendment transforms this bare announcement into a binding promise never to prosecute, upon which the accused has a right to rely in perpetuity. The Pennsylvania Supreme Court held that once the press release had been issued, the Due Process Clause precluded any further prosecution.
Then came the criticism (emphasis in original):
Cosby is a dangerous precedent. A prosecution announcement not to file charges should not trigger due process protections against future criminal proceedings because circumstances could change, including new incriminating statements by the accused. The Pennsylvania Supreme Court held that due process makes detrimental reliance on a decision not to prosecute constitutionally enforceable, regardless of reasonableness. Detrimental reliance, according to that court, transforms a mere decision not to prosecute, or even the absence of a decision to prosecute, into a promise of non-prosecution with a constitutional guarantee. A suspect need only rely to his detriment to ratify his immunity to future prosecution. That is quite an attractive proposition, not only to celebrities like Cosby, but to all manner of garden-variety litigants.
States can give citizens more rights than the floor provided by the U.S. Constitution. The Commonwealth was careful to point out that in this case, the Pennsylvania Supreme Court hinged its analysis on the U.S. Constitution, not solely on any additional rights presented by the state constitution. Thus, the Commonwealth argues, the U.S. Supreme Court can handle the matter.
In reaching this conclusion, the Court relied primarily on Santobello v. New York, 404 U.S. 257 (1971), various Third and other federal Circuit opinions, and Pennsylvania case law applying federal due process analysis. Indeed, the court specifically noted that under Pennsylvania law, federal and state due process principles “generally are understood as operating co-extensively.” Cosby, 252 A.3d at 1135 (App.82a), citing Commonwealth v. Sims, 919 A.2d 931, 941 n.6 (Pa. 2007). Nowhere did the court identify an analysis unique to Pennsylvania due process law.
“[A] prosecutor’s announcement that they are not seeking charges against a defendant is now the functional equivalent of a grant of transactional immunity,” the Commonwealth continued. “Were this true, it would devastate a prosecutor’s discretion to choose what, if any, charges to file against a defendant.”
The Commonwealth then pointed to a series of other high-profile cases around the country where prosecutors determined that charges could be filed after initially pausing:
For example, following the police shooting of Elijah McClain, an unarmed massage therapist, the District Attorney explained: “[N]o state criminal charges will be filed as a result of this incident.” Similarly, after a 7-year- old girl was murdered, the State’s Attorney’s Office declined to file charges based on insufficient evidence, but explained that it would continue to work with police as they continued to investigate the crime. These public press statements have never bound the acting District Attorney or successive District Attorneys. Indeed, the San Francisco District Attorney’s Office even has a unit that reviews certain cases in which the previous administrations declined to file charges.
“Cosby implicitly interpreted the press release as a pardon, but the Pennsylvania Supreme Court had previously held that prosecutors may not grant pardons,” the Commonwealth further quipped back at its own high court.
The point is not that the Pennsylvania Supreme Court violated its own state laws. The point, rather, is that a reasonably prudent person would have been reckless to rely on a supposed guarantee that the prosecutor did not clearly convey and may not have had the power to grant. Prosecutors have used similar words in many press releases, in many serious cases, and they — many of whom are elected state officials — no doubt will continue to do so. Defendants who are later prosecuted in such cases on the basis of new evidence might now plausibly claim immunity under the Due Process Clause, citing Cosby and similar state decisions.
Cosby was released from a Pennsylvania prison on June 30 after the state supreme court overturned his conviction. Other high-profile defendants, including Keith Raniere and Ghislaine Maxwell, have hired Cosby’s counsel and employed his legal arguments in their cases, respectively. (The arguments did not bode well for Maxwell.)
A spokesperson for Cosby rubbished the Commonwealth’s move.
In a statement sent to NPR, Cosby spokesperson Andrew V. Wyatt argued that the Montgomery County D.A. is asking the nation’s highest court to “throw the Constitution out the window, as it did, to satisfy the #metoo mob.”
“This is a pathetic last-ditch effort that will not prevail,” Wyatt told NPR. He also chastised the commonwealth prosecutor’s “fixation with Mr. Cosby,” calling it “troubling to say the least.”
Read the petition and the prosecutor’s office’s press release below.
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