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Thursday, July 01, 2021

Some thoughts on Cosby

I do not do criminal procedure, so I cannot pass on the Pennsylvania Supreme Court decision in Cosby. I want to raise some issues that touch on what I do study.

• Could Pennsylvania seek review in SCOTUS? That is, did the majority rely on federal or Pennsylvania principles of due process and estoppel? It cites state and federal cases and discusses both sources of law, moving between them. In an unclear case, Michigan v. Long requires the conclusion that the state court relied on federal law rather than independent-and-adequate state grounds, giving SCOTUS jurisdiction (although I doubt SCOTUS will touch this case). I think the better reading is that this is a decision on federal due process, but it requires parsing.

• Accepting that a constitutional violation occurred, I agree with the two-justice concurring-and-dissenting opinion that the proper remedy is a retrial without his deposition statements rather than dismissal of the case and a bar on a new trial. The former DA promised not to prosecute and the breach of the promise was the violation, but Cosby was injured only because he answered deposition questions rather than asserting his Fifth Amendment privilege (which the court accepts as the purpose behind the promise) and those statements were used against him. Imagine the former DA had made the promise and the current DA ignored the promise, but Cosby had never testified in the civil action or the new prosecution had not used his statements--in other words, had Cosby not relied. Would the court have found a violation? Reading the opinion, it does not appear so, specially since the former DA likely lacked authority to make this binding promise in this form. If a prosecution would have been allowed ab initio, then the remedy for the violation should be to allow a re-prosecution as if Cosby had not testified (i.e., without his statements).

• The majority is unclear as to who violated Cosby's rights--the former DA who made the promise or the current DA who brought the prosecution? The court is inconsistent about that, although at the end of the day seems to define it as the promise that induced Cosby to waive his Fifth Amendment privilege in the civil action (which would seem to suggest that Castor committed the violation).

If that is the violation, how does that affect the underlying civil case against Cosby? It settled for more than $ 3 million and was dismissed, after Cosby sat for multiple depositions and made inculpatory statements. It does not appear that any judgment was entered. Could Cosby attempt to open the settlement, arguing that it was a product of the DA's constitutional violation--he settled because negative information came out in his depositions, but he would not have made those inculpatory statements (and thus would not have settled) had he not been stripped of his Fifth Amendment rights by Castor's promise? That might be an equitable "other reason" to reopen a judgment; not sure it does the same for a settlement.

• Might Cosby sue the current and/or former prosecutors, claiming a due process violation and seeking to recover some or all of the $ 3 million settlement that resulted from the violation? We will not find out because it seems pretty clear that decisions to prosecutor or not are protected by prosecutorial immunity.

Posted by Howard Wasserman on July 1, 2021 at 03:49 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Judicial Process | Permalink


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