Cosby’s prison release on a technicality is the result of a legal screw-up

OPINION: Bill Cosby is free not because he wasn’t guilty as charged. He is free because the prosecution was incompetent and did not cover its tracks legally.

In a stunning ruling by way of the Pennsylvania Supreme Court, Bill Cosby’s release was granted on what many legal observers are calling a “technicality” — but whether or not it was procedural or technical, Cosby is a free man, who no longer has to be registered as a sex offender.

What’s more, he can never be tried again for the alleged crimes he was previously convicted of, and he is restored to his former position as a free citizen of the United States with all the rights and privileges thereto.

For those who may still be confused as to how this all happened, here it is in a nutshell.

Pennsylvania’s Supreme Court overturned Bill Cosby’s 2018 conviction for sexual assault, on the grounds that an agreement he struck with the then prosecutor to provide testimony in a civil lawsuit back in 2005 and 2006 should have given him immunity in the case. Cosby, who inadvertently revealed in a deposition taken in those lawsuits that he had in fact given a woman drugs without her consent among other things, opened himself up to major legal problems and was ultimately sentenced to 3-10 years in prison. This was the nail in his proverbial coffin.

ttorney Jennifer Bonjean, Bill Cosby, and spokesperson Andrew Wyatt
(L-R) Attorney Jennifer Bonjean, Bill Cosby, and spokesperson Andrew Wyatt speak outside of Bill Cosby’s home on June 30, 2021 in Cheltenham, Pennsylvania. Bill Cosby was released from prison after court overturns his sex assault conviction. (Photo by Michael Abbott/Getty Images)

For context, Cosby has been accused of sexual misconduct or rape by more than 60 women, but none of the other allegations have resulted in criminal charges. Only the 2004 accusation from Andrea Constand made it to a trial and a conviction. For their part, Cosby’s lawyers have long argued that his decision to sit for the depositions in civil lawsuits in 2005 and 2006 hinged on a promise of immunity from a district attorney at the time and that it was, therefore, improper to have his statements used against him in a criminal trial.

As an attorney, I agree with that statement as a matter of law. And so did the Pennsylvania Supreme Court.

As Twitter went crazy Wednesday night over a tweet from actress Phylicia Rashad defending Bill Cosby and suggesting that a miscarriage of justice had been corrected. My feelings aside, here is what all of this means legally for sexual assault victims who speak up, for the #MeToo movement and for defendants like Cosby, who can afford to put up a lengthy legal defense and wield influence so as to overturn their convictions.

I grew up watching Bill Cosby like many Americans. I never missed The Cosby Show on Thursday nights in the late 1980s through the early 1990s when I was a law student. I don’t think any of us took any pleasure in seeing a once-revered father figure, a beloved comedian, generous philanthropist, and seemingly decent man be sentenced to prison in his 80s for drugging women and sexual assault.

Bill Cosby AP
Bill Cosby is escorted out of the Montgomery County Correctional Facility, Tuesday Sept. 25, 2018, in Eagleville, Pa., following his sentencing to three-to-10-year prison sentence for sexual assault. (AP Photo/Jacqueline Larma)

But, if you can do the crime, you have to do the time. And when over 60 women come forward (including former supermodel model Beverly Johnson) over a period of years, backed up by their statements and recollections made to third parties over years, I believe the women.

As the media dissects this case over the coming days and weeks and Cosby’s alleged victims express their outrage on TV, remember that this conviction being overturned is truly all the majority opinion from the Pennsylvania Supreme Court:

“When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. For these reasons, Cosby’s convictions and judgment are vacated, and he is discharged.”

Bill Cosby is free not because he wasn’t guilty as charged. Bill Cosby is free because the prosecution was incompetent and did not cover its tracks legally to meet the necessary constitutional standards of due process and a fair trial that Cosby was entitled to.

In short, they made a deal. Cosby honored the deal and they reneged, resulting in his convictions based on his sworn testimony and statements against his own interest under oath in the depositions. That, my friends, is a once-in-a-lifetime legal screw-up that has likely resulted in a miscarriage of justice to the dozens of victims who Cosby victimized for decades.

Sophia A. Nelson is a contributing editor for theGrio.

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