Bill Cosby is a free man after the Pennsylvania Supreme Court overturned the conviction that sent him to jail roughly three years ago to serve 3-10 years for sexual assault. The opinion (below) correctly found that the trial judge and prosecutors denied Cosby a fair trial and due process in 2018. The question now is whether Cosby might seek damages for his conviction and incarceration.
In their 79-page opinion, the judges found that a “non-prosecution agreement” reached with Cosby should have barred the prosecution. In the earlier agreement, the prosecutor, Bruce Castor Jr., agreed not to charge Cosby in return for his civil deposition. He proceeded to incriminate himself in what the Court said was a bait-and-switch. The later prosecutor then just ignored the nonprosecution agreement. The trial was also undermined by the decision of the trial court to allow women to testify as witnesses on uncharged alleged crimes against Cosby.
It is clear that, absent the agreement, Cosby would never have agreed to the four depositions. Free of the threat of prosecution, Cosby incriminated himself. Dolores Troiani., counsel for Andrea Constand, asked “When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with?” Cosby replied, “Yes.” That and other statements were used at his criminal trial.
Kevin Steele, the Montgomery County district attorney who convicted Cosby, issued a statement that was embarrassing in its evasion of responsibility. He dismissed the ruling as “a procedural issue that is irrelevant to the facts of the crime.” Obviously, it was quite relevant because Steele proved a crime by unconstitutional means. Yet, Steele seems entirely unwilling to acknowledge his errors and declared that
“My hope is that this decision will not dampen the reporting of sexual assaults by victims. Prosecutors in my office will continue to follow the evidence wherever and to whomever it leads. We still believe that no one is above the law — including those who are rich, famous and powerful.”
The statement is breathtaking. Of course it could undermine such reports since Steele engineered an unconstitutional verdict that led to Cosby prevailing. Moreover, Steele is right, “no one is above the law” including prosecutors who are not allowed to pursue convictions at any cost in popular high-profile cases.
Judge Steven T. O’Neill (who the defense sought to force off the case for bias) also has much to answer for in this wrongful conviction. O’Neill at trial seemed hellbent to try the case. He virtually mocked the defense arguments on the nonprosecution agreement: O’Neill, rejected that claim, saying, “There’s no other witness to the promise. The rabbit is in the hat and you want me at this point to assume: ‘Hey, the promise was made, judge. Accept that.’”
The victims should be most upset with the prosecutors and the judge. Any chance to prosecute Cosby was lost in a trial that discarded the most basic requirements of due process. The case shows how the gravitational pull of high-profile cases can grotesquely distort trials. The court yielded to prosecutorial demands that were facially unconstitutional. For the prosecution and the judge, the trial was popular with many. However, the ultimate result was the denial of these victims of a defensible verdict and the denial of this defendant of due process.
One question is whether Cosby could now sue for not just the prosecution but the incarceration in light of the ruling of the Supreme Court. Roughly 30 states and the District of Columbia have statutes allowing for recovery for wrongful convictions and imprisonment. Pennsylvania is not one of them (which is quite surprising).
However, recently Gov. Tom Wolf included in his budget plan a proposal for Pennsylvania to pay people who were wrongly convicted $50,000 for each year that they were held behind bars. Cosby would qualify under such a program.
A federal case in North Carolina recently resulted in $75 million in damages for two wrongly convicted men but that award was in the federal system. The men were sent to death row.
A Pennsylvania man is currently suing in federal court for wrongful conviction.
Likewise, there have been Pennsylvania cases that have resulted in settlements. One man reached a settlement with the city of Philadelphia for wrongful conviction worth $9.8 million. Another man reached a settlement for $6.25 million.
As the first major prosecution in the “MeToo” period, a settlement does not seem likely for Cosby.
So Cosby could sue but would have to do so in a state that does not have a wrongful conviction provision. It must be done under common law, which is challenging. Under common law, Cosby could sued for malicious prosecution. The elements of that tort are (1) the individual was prosecuted without probable cause by law enforcement officers, (2) the prosecution occurred with malice, or recklessness to the lack of probable cause, and (3) the prosecution ultimately terminated in favor of the accused.
Cosby would likely qualify in states with formal compensation systems. He could also make a plausible case for malicious prosecution.
Pennsylvania cases for malicious prosecution are based on the Restatement (Second) of Torts. Section 653 of the Restatement provides:
A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if (a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused.
Crosby was targeted by Steele and others in a defining prosecution for the MeToo Movement. To make the case, Steele disregarded basic legal protections that led to the conviction being overturned. It was not just legally malicious, it was overtly malicious.
Ultimately, his lawsuit could present Gov. Wolf with a political dilemma. Cosby has cognizable claims for wrongful conviction and malicious prosecution. However, he is not exactly a popular cause for many in Pennsylvania. Roughly 50 women accused him and Cosby admitted to giving drugs to his alleged victims before sexual acts. Bill Cosby is the ultimate example that you do not have to be entirely innocent to be wrongly convicted.
Here is the opinion: Cosby v. Commonwealth of Pennsylvania
A version of this column appeared on Fox.com