Bill Cosby was released from prison on Wednesday after the Pennsylvania Supreme Court overturned a 2018 conviction because of a standing agreement with a previous prosecutor.
The sudden release of the 83-year-old actor and comedian left many unanswered questions. Is Cosby, in fact, innocent? Why did the case against him fall apart? Can he be tried again?
Ori Raphael, an attorney and legal expert, answered these questions and more in an interview with the Washington Examiner.
What exactly happened in Cosby’s case?
Cosby stood accused of sexually assaulting Andrea Constand, who said the encounter took place in 2004. The district attorney, Bruce Castor, known for his defense of former President Donald Trump during his second impeachment trial, was the district attorney of Montgomery County at the time, and he argued there was not sufficient evidence to convict Cosby on a criminal charge. That’s when they came to an agreement.
“He made a deal with Cosby, pretty much stating, ‘I won’t prosecute you, but at the same time, by doing that, you’re going to lose your ability to plead the Fifth … By doing this deal, you have to testify in a civil proceeding against yourself,'” Raphael said, referring to Fifth Amendment protections against self-incrimination.
That deal granted Cosby “almost immunity from being prosecuted on the rape charge,” Raphael explained. Cosby then testified in the civil proceeding under penalty of perjury.
When the depositions were unsealed in 2015, the new prosecutor used them to bring criminal claims against Cosby, a move the Pennsylvania Supreme Court determined violated Cosby’s agreement with Castor.
Is Cosby innocent?
“They didn’t rule, you know, necessarily whether Cosby is innocent or guilty,” Raphael said.
Can he be tried on these charges again?
No, he can’t.
While scanning the ruling, Raphael said, “They did say he’s discharged, and any future prosecution of these particular charges, meaning these rape charges he’s in jail for, must be barred.”
What can future prosecutors learn from Cosby’s release?
“Hindsight is 20/20, but if he pursued it, then, right, I mean it could’ve barred them from making a civil claim against Cosby for Cosby’s victim at the time because there’s only one trial of one victim in the other victims who testified,” Raphael said. “Prosecutors are given immense power in this country, and sadly, we’re almost at the point where some people are guilty until proven innocent. I mean, the moment you publicly state somebody is under investigation, or you’re going to press charges against them, you know, it sticks on you. But that’s why we have the Constitution. That’s what we have those protections because there’s a lot of innocent people who are wrongfully prosecuted. I’m not saying Cosby’s one of them; that’s for sure. So these issues are going to come up into the future.”
Raphael added blanket immunities such as this one are “rare” but said he didn’t think the prosecutor realized “how far this went with Cosby.”
“It was only when he did those depositions, and he was comfortable enough with that immunity that … he stated the truth,” he continued. “So it’s a double-edged sword, to say the least.”
If Cosby had offered the same testimony and the rest of the proceedings were the same without Castor’s agreement, would Cosby still be behind bars?
“Absolutely,” Raphael said. “I mean, if he wasn’t given that immunity, or he didn’t make that agreement or deal, we could call it then. Yeah. If he stated that on the road. Now, without that agreement, Cosby would have likely just plead the Fifth, or his attorneys would have found any way possible from not even testify in a civil proceeding … Cosby would have likely testified in a criminal proceeding if no agreement was made, but … he would have maybe got off, according to what Castor was saying because he had no witnesses.”
Was there any dispute over the witnesses’ testimony?
Yes. In the first trial in 2015, only Cosby’s accuser was allowed to testify, and the jury was deadlocked. The prosecutor then decided to hold a second trial. Even though Cosby was only on trial for one accusation, five other Cosby accusers were brought in to testify against him for unrelated incidents.
“Let me give you an example. Let’s say somebody who’s drinking and driving. OK? You’re in trial for drunk driving, and they bring witnesses to state they’ve seen you previously drinking and driving. Well, that doesn’t prove that you were drinking and driving on the day of the incident that you’re on trial for, OK?” Raphael explained. “It’s called a ‘bad act witnesses.’ It’s sort of — it’s saying you’re guilty without necessarily proving the point of your guilt for that specific instance because it doesn’t matter if you’ve done it before, OK? You’re on trial for that one instance, and they didn’t prove that one instance, but what they did is by that bad act witness, he was guilty from the get-go.”
Did Cosby’s star power play a role in the proceedings?
“It makes all the difference that he was a celebrity because money was involved,” Raphael argued.
“The DA knew there was money involved. All right? Cosby had powerful, well-experienced attorneys who knew the games in and out, and the DA knew what he was up against, I assume. And that’s why he made that deal. Because he knew also that a lot of money would likely be paid to this accuser, and … she was paid a lot of money. But still, that doesn’t necessarily mean he’s innocent. That doesn’t mean you shouldn’t face justice, but this is the deal that was made.”
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Raphael said a less famous defendant would “likely not be given the same circumstances or agreements because, frankly, “John Doe couldn’t afford to pay something like that.”
“And sadly, in our country, money does talk. It speaks louder. Sometimes in justice itself, but we shouldn’t have it. Everybody should be up to the same standards. That’s what the system’s for,” he added.
