Deal that overturned Bill Cosby’s conviction is unusual for sexual assault case and should never go through again, legal experts say


Bill Cosby arrives for conviction in his sexual assault trial at the Montgomery County Courthouse on September 24, 2018 in Norristown, Pennsylvania. Gilbert Carrasquillo / Getty Images

  • The Pennsylvania Supreme Court overturned Bill Cosby’s conviction over a non-prosecution agreement.

  • Legal experts say the case shows prosecutors should not enter into such deals.

  • A former judge said non-prosecution agreements protect the powerful and the wealthy from the consequences.

  • Visit the Insider homepage for more stories.

Pennsylvania Supreme Court reversed Bill Cosby’s sexual assault conviction on Wednesday was due to legal technicality, and experts say the news should serve as a warning to prosecutors across the country not to make the same mistake.

The technicality of the Cosby case was a non-prosecution agreement reached in 2005. At the time, the Montgomery County district attorney swore not to prosecute Cosby in criminal proceedings, as long as the comedian was testifying in a civil case related to the same claims.

Legal experts told Insider that Pennsylvania Supreme Court ruling overturning Cosby’s conviction was the correct one, as a prosecutor’s promises are binding, especially when they make someone give up their constitutional rights like Cosby did.

But experts also said the 2005 no-prosecution deal with Cosby was highly unusual. Such agreements are typically only used in white-collar cases involving companies, experts said, and not in crimes involving violence or sexual assault.

Paul Cassell, a former federal judge and current University of Utah law professor, told Insider that the only similar non-prosecution deal he could think of was the one involving late financier Jeffrey Epstein in 2007. At l ‘time, Florida federal prosecutors agreed not to continue Epstein or his accomplices for sex trafficking as long as he pleaded guilty to the charges against him.

The similarities between the Cosby case and the Epstein case are no coincidence, said Cassell, who has represented several of Epstein’s victims and successfully challenged the non-prosecution agreement in court.

“These deals seem to come into play in cases where you have wealthy defendants with powerful legal defense teams – you don’t see that very often in regular criminal cases,” Cassell said. “You start to wonder about a two-way justice system, where someone like Cosby can make some sort of magical deal.”

Experts say prosecutors should wait for more evidence, not quick deals


Andrea Constand attends a press conference on September 25, 2018 in Norristown, Pennsylvania. Bastiaan Slabbers / NurPhoto via Getty Images

Andrea Constand, who accused Cosby of sexual assault, sued the comedian in 2005 after the district attorney said there was not enough evidence to indict Cosby criminally. During this litigation, Cosby waived his Fifth Amendment right against self-incrimination and admitted to train women and initiate sexual relations.

Despite the no-prosecution agreement, a new prosecutor in the same district indicted Cosby in 2015 in connection with Constand’s allegations, just before the statute of limitations expired. Cosby was convicted in 2018 and sentenced to three to ten years in prison.

It was out wednesday after serving only two years.

The outcome of the Cosby case should deter local and federal prosecutors from entering into non-prosecution agreements in the future, according to Laurie Levenson, a professor at Loyola Law School.

“I’ve always worried about agreements that say, ‘We’re never going to sue,'” Levenson said. “You don’t know what evidence you’re going to get on the road.”

She added that prosecutors should remember times are changing. While Constand’s sexual assault case may have seemed impossible to win in 2005, the #MeToo movement of recent years has likely made jurors more sympathetic to testimonies from sexual assault victims, in the same way. as jurors in Harvey Weinstein’s trial.

“At the time, prosecutors weren’t convinced they would win the case. And part of the reason they weren’t confident was that victims’ testimony was not as respected or not as respected. effective, ”she said.

Cassell said the best approach at the time would have been for the district attorney to do nothing at all and leave the case open to future prosecutors if further evidence emerged.

“It seems clear that the only one who benefited from this deal was Cosby,” Cassell said. “And that makes you wonder why did the prosecutor make the deal to begin with?”

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