The Cosby Problem

Bill Cosby’s release is a consequence of a criminal justice system run by insiders seeking efficient results. This debacle sheds light on the disappointing state of our criminal justice system, the overly wide latitude afforded to prosecutors, and the mechanical way in which the system operates.

On June 30, 2021, many looked on with disappointed surprise as Bill Cosby was released from jail. After the actor and comic was publicly convicted of sexual assault in 2018, it was a shock to see Cosby go free, particularly because he was not exonerated. Despite the shock, those familiar with the case are unsurprised, as mistakes made by the prosecution had given Cosby the opportunity to have his conviction overturned.

I must preface that, while I am a lawyer, my practice is exclusively civil, not criminal. My comments on this matter are, therefore, academic and observational, rather than experiential. Nevertheless, I think that the issues observed in the Cosby case—the “economization” of the criminal justice system—have been thoroughly observed by academic lawyers and are of interest for general audiences.

The Cosby case—and, in particular, the actions of Bruce Castor, the initial prosecutor—are worth our attention. That’s because Castor’s handling of the case reveals a much larger problem within our criminal justice system. This problem must be addressed.


The Cosby Case

In 2005, Andrea Constand reported that Cosby drugged and sexually assaulted her in 2004. Bruce Castor, the district attorney for Montgomery County, Pennsylvania, investigated the case and determined that his office would be unable to prove “beyond a reasonable doubt” that Cosby had sexually assaulted Constand. Castor made this determination based on his presumptions of how a jury would interpret Constand’s credibility, given that she did not immediately file a complaint and that some of her testimony was supposedly “inconsistent.”

Castor decided that he would not charge Cosby. This move was apparently made to seek alternative recourse for Constand in that, rather than proceed in a criminal trial, Constand could seek monetary damages in a civil case against Cosby. Victory in a civil trial was more attainable, given that the case would be determined under the lower standard of “preponderance of the evidence” and that Cosby would be unable to assert his Fifth Amendment right against self-incrimination in deposition testimony.

Thus, on February 17, 2005, Castor issued a press release stating that the Montgomery County District Attorney would not bring charges against Cosby. Cosby proceeded to sit for the depositions, in which he made self-incriminating statements.

After Cosby had submitted to the depositions, Castor’s successors, Risa Vetri Ferman and Kevin Steel, did not feel bound to Castor’s decision not to press charges. Ferman brought charges against Cosby and entered the civil depositions as evidence against Cosby in the criminal case, which the trial court allowed. Thus, a controversy was born. Was there an agreement by which Pennsylvania would not bring charges against Cosby in exchange for Cosby’s submitting to testify in a deposition without his Fifth Amendment right against self-incrimination?

The Pennsylvania Supreme Court’s Decision

In Commonwealth v. Cosby, the Pennsylvania Supreme Court overturned Cosby’s conviction on the basis that Cosby had relied on Castor’s decision not to prosecute him when he submitted to the depositions in the civil trial. The legal situation was unclear. Typically, an immunity agreement must be made in writing and approved by the court. Castor had not made any written agreement, nor was any agreement approved by the court. The state’s theory, then, was that Castor’s promise was not binding. This reasoning was accepted by the trial court, which proceeded to try Cosby.

Justice David Wecht, writing for the majority of the Pennsylvania Supreme Court, did not see it this way. An agreement existed, and Cosby had relied on it. Pennsylvania could not “bait-and-switch” Cosby, and the conviction, therefore, must be overturned. Justice Wecht’s decision was joined in full by three justices of the Court.

Writing separately, Justice Kevin Dougherty, joined by Chief Justice Max Baer, believed that while an agreement existed, the proper remedy would be to suppress Cosby’s deposition testimony at trial, rather than overturn the conviction. Finally, Justice Thomas Saylor, dissenting, believed that the trial court had already determined that no agreement existed, and the Supreme Court should defer to the finding of fact by the trial court. Regardless of Justice Dougherty’s concurrence and Justice Saylor’s dissent, the majority held the day, and Cosby was released.

Cosby was released on a technicality, but a significant one. This debacle sheds light on the state of our criminal justice system, the wide latitude afforded to prosecutors, and the mechanical way in which it operates. These observations were previously made by then-Professor (now-Judge) Stephanos Bibas in his book The Machinery of Criminal Justice, and in his academic and general audience articles.


What is a Prosecutor?

What is a prosecutor? In the 2018 Pennsylvania Supreme Court decision Commonwealth v. Clancy, the Court identified three distinct and equally important roles played by prosecutors: they are officers of the court, they are advocates for victims, and they are administrators of justice. As an “administrator” of justice, the prosecutor is given extraordinary latitude in deciding whether to initiate formal criminal proceedings, to select what charges will be brought against the accused, to negotiate plea bargains, to withdraw charges, and to prosecute or dismiss charges at trial.

This latitude is meant to allow prosecutors to manage the complicated and specialized criminal justice system. However, this latitude contains potential dangers. As Bibas pointed out, prosecutors (and defense attorneys) are often influenced by the need for an “efficient” administration of justice, a need that sometimes conflicts with the prosecutors’ other roles.

Bibas’s main concern was plea bargaining, the most economical way in which the criminal justice system is managed. More generally, he describes the evolution of our criminal justice system away from the “morality play” model, which was primarily led by laymen. By “morality play,” Bibas means the popular ideal of criminal justice as “an educational social drama unfolding before a jury of one’s peers.” In this model, victims act as prosecutors and defendants defend themselves without the use of professional lawyers. Such trials involve “very quick, common-sense moral arguments” with victims telling their stories and defendants responding.

As criminal justice began to extend beyond small, local communities, this model became unsustainable. With the formalization of procedural rules, specialization by professionals in the criminal justice system became necessary. Unfortunately, this specialization has led to an overly mechanical system run by “insiders” (prosecutors and lawyers). The system becomes a matter of churning out guilty pleas. In such an insider-run system, there are few opportunities for victims, and even defendants, to share their voices.

Note the way Castor, in his attempt to seek out justice for Constand, unilaterally decided not to pursue charges against Cosby. Constand and her attorneys reported that Castor did not even inform them of his decision beforehand. Castor sought a goal—to get some semblance of justice for Constand—and decided that the path to do so required his office to forgo bringing criminal charges against Cosby. This process afforded little opportunity for Constand, and even Cosby, to participate. Cosby’s release is due, to some degree, to a criminal justice system run by insiders seeking efficient results.

I will conclude with a note of sympathy for Castor and his intentions. Castor’s reason for not bringing charges against Cosby was his determination that he would not be able to prove Cosby’s guilt beyond a reasonable doubt. Critics of Castor will point out his quick presumptions on this point, including his impression that a jury would not find Constand credible as a witness. Castor, while certainly believing Constand’s accusations, simply did not have faith in Constand, nor faith in a criminal justice system that could give Constand justice. Our impression of Castor, however, is too influenced by hindsight. At the time, Castor likely feared that, if brought to criminal trial in 2005, Cosby would not only be free but exonerated, leading to a public perception quite different from that of today.

The Machine vs. the Morality Play

Prosecutors are granted wide latitude for a reason. As “insiders” of the criminal justice system, they occupy an advantageous place from which they can see the whole picture of the criminal case, a picture that laymen simply do not get. Unfortunately, overworked prosecutorial offices have to handle a significant number of criminal cases. While the reasons for economizing justice are there, the practice has also created a problem: the criminal justice system has become an insider system without the opportunity for accusers to speak out about offenses made against them. It is an assembly line for a mass-produced, one-size-fits-all justice.

A solution to this general problem is unclear. Unlike more prevalent, economized issues surrounding practices like plea bargaining, little can be done about the type of prosecutorial decision made by Castor. Castor’s particular decision is not a prevailing problem, but an indicator of a culture of the criminal justice system. New legislation is unlikely to solve the problem, as Bibas noted in a 2009 law review article. Rather, internal change is necessary within the culture of prosecutorial offices, for, as Bibas notes in the article, steps toward self-regulation and changes in workplace culture may be the only way to effect change. Further, if prosecutorial offices act based on economic incentives, perhaps the whole system, not just prosecutorial offices, needs to change. Such change must be motivated by the recognition that a mechanized criminal justice system, while helpful in achieving efficiency, has serious limitations.

No society can ever “go back” to the past. Our criminal justice system cannot simply return to the “morality play” model that Bibas describes in his book, as it no longer meets the demands of modern criminal justice. However, our criminal justice system should acknowledge the benefits of the morality play conception, crafting a system that acknowledges the need and incorporates a place for the voices of accusers, accused, and the public.

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