March 28, 2023

Bill Cosby Conviction Overturned; Retrial Barred on Due Process Grounds

Bill Cosby (Michael Abbott / Getty)
Michael Abbott / Getty

Bill Cosby was released from state prison in Pennsylvania on Wednesday after the Pennsylvania Supreme Court threw out his sexual assault conviction because prosecutors violated his due process rights — rights the left has lately ignored.

In the early decades of the civil rights movement, one of the most important priorities was defending the due process rights of black defendants, who were often railroaded by white juries — and sometimes lynched by white vigilantes.

But over the past decade, due process rights were neglected as Black Lives Matter pursued police for officer-involved shootings, “#metoo” presumed the guilt of the accused; and Democrats impeached President Donald Trump — twice.

Pennsylvania Supreme Court overturned Cosby’s 2018 conviction because prosecutors broke a verbal deal not to charge him if he testified in a civil case. The court did not rule on whether the retrial judge’s decision to let other accusers testify, possibly prejudicing the jury, was grounds for reversing the conviction, because of its ruling on the prosecution itself.

The Court stated:

[W]e 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.

Cosby did not invoke the Fifth Amendment before he incriminated himself [in the civil case] because he was operating under the reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the potential exposure to criminal punishment no longer exist[ed].”

The Court said that the prosecution had to be held to its promise not to prosecute Cosby for its testimony, and that “neither our principles of justice, nor society’s expectations, nor our sense of fair play and decency, can tolerate anything short of compelling” prosecutors to drop the case and never prosecute him for it again. “Here, only full enforcement of the decision not to prosecute can satisfy the fundamental demands of due process.” It concluded:

The impact of the due process violation here is vast. The remedy must match that impact. Starting with D.A. Castor’s inducement, Cosby gave up a fundamental constitutional right, was compelled to participate in a civil case after losing that right, testified against his own interests, weakened his position there and ultimately settled the case for a large sum of money, was tried twice in criminal court, was convicted, and has served several years in prison. All of this started with D.A. Castor’s compulsion of Cosby’s reliance upon a public proclamation that Cosby would not be prosecuted. The CDO’s remedy for all of this would include subjecting Cosby to a third criminal trial. That is no remedy at all. Rather, it is an approach that would place Cosby nowhere near where he was before the due process violation took root.

There is only one remedy that can completely restore Cosby to the status quo ante. He must be discharged, and any future prosecution on these particular charges must be barred. We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled.

CNN published an op-ed that declared the decision to free Cosby a sign of an “alarming new era,” in which men would feel free to attack women. But the decision had nothing to do with the substance of the allegations. It was about the due process rights of Bill Cosby as a criminal defendant, and the need to protect public trust in the justice system as a whole.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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