Cosby’s Release from Prison Had Nothing To Do With Guilt or Innocence

When the Pennsylvania Supreme Court reversed Bill Cosby’s conviction for sexual assault and ordered him released from prison, the reaction was immediate, vociferous, and often wrong.

Over the last few years, allegations about Cosby have arisen with such frequency that his public persona no longer bears any resemblance to Cliff Huxtable. His trial and subsequent conviction for sexual assault effectively put an end to a reputation tied smilingly to JELLO commercials.

As a general rule, a state’s supreme court will overturn a conviction based on some flaw that occurred during trial. These flaws cover a large variety of problems, ranging from bad legal representation to improperly admitted evidence to jury misconduct. The Cosby conviction had none of these. So why was the conviction reversed and what does it way about his guilt or innocence?

To understand what happened here, we need to talk about something called “prosecutorial discretion.” Prosecutors are given a tremendous amount of leeway in deciding whether or not to prosecute someone and to decide what charges, if any, should be brought. 

When a prosecutor declines to bring charges, many factors come into play. There may not be enough clear evidence of the crime. The witnesses may not be reliable. The alleged criminal may be cooperating in another investigation. Considering the prosecutor’s workload, the case may simply not be as important as others that are pending. The list goes on and on. 

The decision about whether to bring charges may also change over time. Cold cases may be resurrected with newly discovered evidence or charges may be dismissed when it becomes clear that the defendant was not really guilty. 

The Cosby case put a spotlight on prosecutorial discretion in the context of one’s right not incriminate yourself. 

At the time that prosecutors were considering bringing criminal charges, Cosby was also facing lawsuits brought by some of his sexual assault victims. These were “civil” lawsuits looking for money damages.  The plaintiffs in these cases had a problem. The only person, other than the victim, who could describe the circumstances of the alleged assaults was the defendant, Cosby. Cosby was refusing to testify in these cases, claiming that whatever he said in the civil cases could also be used against him in a criminal case. On other words, his right against self-incrimination in one arena (the criminal court) meant that he could refuse to testify in the civil cases.

Here is where prosecutorial discretion came in. The prosecutor told Cosby that he would not be charged in a criminal case. Thus, with the threat of self-incrimination removed, he had no option but to testify in the civil cases. Although Cosby ended up paying significant money in the civil cases, at least he was not charged as a criminal. 

Years passed and a new prosecutor came onto the scene. Using the prosecutorial discretion discussed above, the prosecutor determined that there was now enough evidence to bring Cosby to trial—that evidence being his testimony in the civil cases. Cosby was convicted and sentenced to jail. 

Cosby appealed the conviction (while serving time). He said that even though prosecutors have wide discretion, they may not later change their minds after I have incriminated myself. Cosby had relied on the good faith of the prosecutors and suffered for it. The state’s attorney countered that if a concern about self-incrimination was really that important, you should have gotten the agreement in writing at the time. 

The Pennsylvania Supreme Court reversed the conviction in a 79-page opinion.  It was not an easy decision to make. 

We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled. … Society’s interest in prosecution does not displace the remedy due to constitutionally aggrieved persons. 

What makes this case so unique is that there is nothing in the opinion that talks about Cosby’s guilt or innocence. There was no claim that the jury erred in finding Cosby guilty of sexual assault. Rather, the Court emphasized that prosecutors, even with all of their discretion, may not take away one’s Constitutional rights by later deciding to bring charges.

This case illustrates why justice is never an easy matter. Cosby’s new-found freedom does not come with innocence. And we should take solace in that.