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PHILADELPHIA — The lead prosecutor in Bill Cosby’s sex assault case believes the Pennsylvania Supreme Court overstepped its power in reversing the comedian’s conviction and added “fuel on the fire” when the chief justice gave a weekend television interview — and appeared to misstate the key issue in the appeal.Chief Justice Max Baer accused prosecutors of a “reprehensible bait and switch” in arresting Cosby in 2015 despite what he called the certain existence of a 2005 non-prosecution agreement.“There was no controversy whatsoever that the deal was made. It was memorialized in emails, it was memorialized in news conferences,” Baer told WHTM-TV in Harrisburg.However, the existence of the agreement has been hotly debated, both before and after the two criminal trials that ended with Cosby’s conviction in 2018. And there was no mention of it in writing until 2015.The ex-prosecutor who said he made the promise in 2005, Bruce Castor, waited until the case was reopened a decade later to tell the victim or anyone in his office about it, according to their testimony. By then, the defense lawyer to whom Castor said he made the promise had died.Montgomery County District Attorney Kevin Steele said this week he is reviewing the Supreme Court decision to see if he might challenge it. He believes the state’s high court revisited the facts of the case, which he called the job of the trial judge. The appellate courts are tasked with reviewing legal rulings.One potential path is to seek review at the U.S. Supreme Court, although that is often a long shot. Cosby, who turned 84 on Monday, served nearly three years in prison before his release. Sex assault victims, and many Cosby accusers, have sharply criticized the June 30 decision.“Despite the extensive investigation we conducted, we found no credible evidence that Castor had given Cosby immunity,” Steele said in a statement issued late Sunday, in response to Baer’s unusual television comments about the decision.“There has been a tremendous amount of misinformation about what actually took place in this criminal prosecution. Throwing further fuel on the fire was a televised interview airing this weekend by now Pennsylvania Supreme Court Chief Justice Baer,” Steele said.Steele challenged the court’s finding that Cosby relied on a promise when he gave a deposition in the accuser’s lawsuit, rather than assert his Fifth Amendment right not to testify. And he said the trial judge agreed with him.His office has argued over the years that Cosby made a strategic decision to sit for the deposition in accuser Andrea Constand’s lawsuit, rather than have a jury learn that he had invoked his right not to incriminate himself. And, they noted, Cosby by that time had given a voluntary police statement and spoken to a tabloid about the encounter.Shortly after that 2006 deposition, Cosby paid Constand $3.4 million to settle the case. The testimony remained sealed until 2015, when a federal judge made parts of it public at the request of The Associated Press, calling his admissions “perhaps criminal.”Castor’s successor, now-Judge Risa Vetri Ferman, took that cue and reopened the investigation. Only then — in September 2015 — did Castor send the first email suggesting he had made a binding agreement to Cosby’s lawyer, according to evidence in the case.He had never told Ferman about it, even though she was his top deputy and the person leading the Cosby investigation in 2005, according to her testimony.Instead, he issued a February 2005 news release that said he would not prosecute Cosby, hoped the parties would work it out in civil court and said he would not have any further comment.Ferman, later asked under oath if she thought the news release amounted to a non-prosecution or immunity agreement, said, “No of course not.”Castor, as he campaigned to return to the District Attorney’s Office in 2015, insisted the decision not to prosecute Cosby was meant to be binding.Montgomery County Judge Steven O’Neill found Castor not credible after a two-day hearing in February 2016, and sent the case to trial. He ultimately sentenced Cosby to three to 10 years in prison after a jury convicted him in a 2018 retrial of drugging and molesting Constand in 2004.The Associated Press does not typically identify sexual assault victims without their permission, which Constand has granted.The Supreme Court, in its majority opinion, said the record supports O’Neill’s finding that Castor made a charging decision, not a formal immunity agreement, but said his 2015 “attempts to explain or characterize his actions are largely immaterial.”Instead, the four-person majority found “indisputable evidence” that Castor hoped to induce Cosby to testify in the civil suit in the hope it would help Constand. And they found it “reasonable” that Cosby and his experienced lawyers relied on an unwritten promise.Some fear the decision creates the potential for prosecutorial abuse if it’s allowed to stand. A pair of state lawmakers want to require immunity agreements to be put in writing, lest a rogue prosecutor be given the power to effectively pardon people before ever charging them.The Pennsylvania District Attorneys Association said the decision “potentially grants unprecedented pardons power to each and every district attorney, and every one of his or her assistants in perpetuity, on their successors, and without having to be in writing.”That issue might interest the U.S. Supreme Court if Steele decides to appeal.However, the twists and turns of the case make it “one in a million,” and one the high court might therefore choose to skip, according to David Rudovsky, a University of Pennsylvania law professor.He believes the Pennsylvania court’s opinion sends a warning to prosecutors that a defendant caught up in a prosecutor’s ambiguous decisions should not be harmed by them.Steele does not see any ambiguity.“To be very clear, prosecutors in this case did not believe there was an agreement not to prosecute or immunity for the defendant at the time we moved forward on the case,” he said, “and we do not believe it now.”——— Follow Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale.
PHILADELPHIA — The seven justices who reversed Bill Cosby’s conviction this week spent months debating whether he had a secret agreement with a prosecutor that tainted his 2018 criminal sexual assault conviction.In the end, Pennsylvania’s highest court ruled that a district attorney had induced Cosby to give incriminating testimony in 2005 for a lawsuit, with the promise that no criminal charges would be filed. Then, a decade later, another prosecutor used it against him — a fundamental violation of his Fifth Amendment rights. “America’s Dad” walked out of prison Wednesday and won’t face any further trials in the case.The public outcry over Cosby’s sudden release three years into a potential 10-year sentence was swift, with #MeToo activists worried it would have a chilling effect on survivors. And lawyers for another high-profile man convicted of sexual assault, Harvey Weinstein, praised the decision.But criminal law experts believe the court acted reasonably in finding that a prosecutor’s word should be honored, even by a successor. One called the ruling a wakeup call for prosecutors who might try to quietly resolve a case without a paper trail, or make a deal over a handshake.“It probably would have been much better lawyering to get it all in writing,” Loyola Law School professor Laurie Levenson, a former prosecutor, said of the hidden deal in the Cosby case. “It’s a teachable moment, I think, for prosecutors across the nation. It’s a big lesson.”Levenson, too, fears the quick takeaway is that “another celebrity gets away with a crime.” More deeply, she said, the case illustrates the need for legal agreements that are “open, fair and transparent.”“For survivors of sexual assault, it’s got to be another incredibly upsetting, frustrating moment,” she said. “So (there are) good lessons for prosecutors and hard lessons for survivors.”The court heard arguments in December. On Wednesday, a majority of the justices, 6-1, found Cosby’s case should be overturned. But the justices split 4-2 on whether he should go free or face a third trial. The two dissenting justices questioned if Cosby had ever really been promised immunity — or whether an abuse of power led to former Montgomery County prosecutor Bruce Castor’s “odd and ever-shifting explanations” of his promise to Cosby.They urged their colleagues to condemn the tactics, lest others follow suit and make promises that later entrap defendants who agree to talk.“We should reject Castor’s misguided notion outright and declare that district attorneys do not possess this effective pardon power,” Justice Kevin Dougherty wrote in a dissent.Castor, testifying for the defense soon after Cosby’s arrest in late 2015, said he had promised Cosby’s lawyer in 2005 that the actor would never be charged over his encounter with Andrea Constand, in part so that he could help her wage a lawsuit against Cosby.No legal documents were drafted. No immunity agreements went before a judge. Even Castor’s top assistant, who had led the initial investigation, said she knew nothing about it. Neither did Constand’s lawyer, according to testimony at the sometimes surreal preliminary hearing in February 2016.Castor said he discussed the agreement with a Cosby lawyer who had since died. And he said he issued a signed press release to announce the end of the investigation. Several courts have since parsed the wording of that press release, which opines that both parties in the case could be seen “in a less than flattering light,” and cautions that Castor would “reconsider this decision should the need arise.”Constand, in the wake of that decision, sued Cosby in federal court.In the depositions that followed, the trailblazing actor made lurid admissions about his sexual encounters with a string of young women. He acknowledged giving them drugs or alcohol beforehand, while he stayed sober and in control. The list included Constand, who said she took what she thought were herbal products at Cosby’s direction, only to find herself semiconscious on his couch.Cosby, in the deposition, famously said he ventured “into the area that is somewhere between permission and rejection” as Constand lay still.Neither he nor his lawyers ever asserted his Fifth Amendment right not to incriminate himself during four days of sworn testimony.“Cosby would’ve had to have been nuts to say those things if there was any chance he could’ve been prosecuted,” Castor testified at the 2016 hearing. He said his goal in steering the case to civil court was to find Constand an alternate form of justice.“I was hopeful that I had made Ms. Constand a millionaire,” said Castor, who later represented former President Donald Trump in his second impeachment trial, where he was acquitted of inciting the violent mob that stormed the U.S. Capitol on Jan. 6.In 2015, a federal judge unsealed some of Cosby’s testimony upon a request from The Associated Press, and Castor’s successor reopened the case. Judge Steven O’Neill allowed some of the statements to be used at trial.It was that unusual sequence of events that troubled the Pennsylvania high court — even though O’Neill and a lower appeals courts had found Castor’s talk of a non-prosecution agreement not credible.Whatever their view of such blanket promises, the Supreme Court justices found that Cosby and his lawyers relied on it in giving the deposition.Therefore, “the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced,” Justice David N. Wecht wrote for the four-person majority, which included all three of the high court’s female judges.The panel avoided ruling on the thorny issue of how many witnesses should be allowed to testify about a defendant’s prior bad acts in a criminal case — an issue many lawyers hoped they would clarify.O’Neill had allowed just one other accuser to testify at Cosby’s first trial in 2017, but upped the number to five at the retrial the following year, when Cosby was convicted.“Everyone was watching this case for the ‘other evidence’ ruling. This (ruling) came out of the blue,” said Jules Epstein, a Temple University law professor.At least one justice, Thomas Saylor, would have sent the case back for a new trial over the “other accuser” issue, according to his solo opinion. But it become moot when the majority agreed to bar any future prosecutions in the case.Washington lawyer Joseph Cammarata represented several accusers in defamation suits filed against Cosby, which his insurer settled after the 2018 conviction. He regrets that some people see the ruling as a vindication of the actor.“They haven’t rejected the allegations of the 60-plus people who asserted that Cosby assaulted them. They haven’t rejected the five people that testified. Nor have they rejected the jury’s verdict that Cosby was guilty of sexual assault-related charges,” Cammarata said.———Follow Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale
PHILADELPHIA — Pennsylvania’s highest court threw out Bill Cosby’s sexual assault conviction and released him from prison Wednesday in a stunning reversal of fortune for the comedian once known as “America’s Dad,” ruling that the prosecutor who brought the case was bound by his predecessor’s agreement not to charge Cosby.Cosby, 83, flashed the V-for-victory sign to a helicopter overhead as he trudged into his suburban Philadelphia home after serving nearly three years of a three- to 10-year sentence for drugging and violating Temple University sports administrator Andrea Constand in 2004.The former “Cosby Show” star — the first celebrity tried and convicted in the #MeToo era — had no comment as he arrived, and just smiled and nodded later at a news conference outside, where his lawyer Jennifer Bonjean said: “We are thrilled to have Mr. Cosby home.”“He served three years of an unjust sentence and he did it with dignity and principle,” she added.In a statement, Constand and her lawyers called the ruling disappointing, and they, like many other advocates, expressed fear that it could discourage sexual assault victims from coming forward. “We urge all victims to have their voices heard,” they added.Cosby was arrested in 2015, when a district attorney armed with newly unsealed evidence — the comic’s damaging deposition in a lawsuit brought by Constand — filed charges against him just days before the 12-year statute of limitations was about to run out.But the Pennsylvania Supreme Court said Wednesday that District Attorney Kevin Steele, who made the decision to arrest Cosby, was obligated to stand by his predecessor’s promise not to charge Cosby, though there was no evidence that agreement was ever put in writing.Justice David Wecht, writing for a split court, said Cosby had relied on the previous district attorney’s decision not to charge him when the comedian gave his potentially incriminating testimony in Constand’s civil case.The court called Cosby’s subsequent arrest “an affront to fundamental fairness, particularly when it results in a criminal prosecution that was forgone for more than a decade.” It said justice and “fair play and decency” require that the district attorney’s office stand by the decision of the previous DA.The justices said that overturning the conviction and barring any further prosecution “is the only remedy that comports with society’s reasonable expectations of its elected prosecutors and our criminal justice system.”Cosby was promptly set free from the state prison in suburban Montgomery County and driven home.“What we saw today was justice, justice for all Americans,” said another Cosby attorney, Andrew Wyatt. ”Mr. Cosby’s conviction being overturned is for the world and all Americans who are being treated unfairly by the judicial system and some bad officers.”Bonjean said Cosby was “extremely happy to be home” and “looks forward to reuniting with his wife and children.” Several supporters outside yelled, “Hey, hey, hey!” — the catchphrase of Cosby’s animated Fat Albert character — which brought a smile from him.He later tweeted an old photo of himself with his fist raised and eyes closed, with the caption: “I have never changed my stance nor my story. I have always maintained my innocence. Thank you to all my fans, supporters and friends who stood by me through this ordeal. Special thanks to the Pennsylvania Supreme Court for upholding the rules of law.”In a statement, Steele, the district attorney, said Cosby went free “on a procedural issue that is irrelevant to the facts of the crime.” He commended Constand for coming forward and added: “My hope is that this decision will not dampen the reporting of sexual assaults by victims.”“I am furious to hear this news,” actor Amber Tamblyn, a founder of Time’s Up, an advocacy group for sex-crime victims, said on Twitter. “I personally know women who this man drugged and raped while unconscious. Shame on the court and this decision.”But “Cosby Show” co-star Phylicia Rashad tweeted: “FINALLY!!!! A terrible wrong is being righted — a miscarriage of justice is corrected!”Four Supreme Court justices formed the majority that ruled in Cosby’s favor, while three others dissented in whole or in part.Peter Goldberger, a suburban Philadelphia lawyer with an expertise in criminal appeals, said prosecutors could ask the Pennsylvania Supreme Court for reargument or reconsideration, but it would be a very long shot.“I can’t imagine that with such a lengthy opinion, with a thoughtful concurring opinion and a thoughtful dissenting opinion, that you could honestly say they made a simple mistake that would change their minds if they point it out to them,” Goldberger said.Even though Cosby was charged only with the assault on Constand, the judge at his trial allowed five other accusers to testify that they, too, were similarly victimized by Cosby in the 1980s. Prosecutors called them as witnesses to establish what they said was a pattern of behavior on Cosby’s part.Cosby’s lawyers had argued on appeal that the use of the five additional accusers was improper. But the Pennsylvania high court did not weigh in on the question, saying it was moot, given the finding that Cosby should not have been prosecuted in the first place.In sentencing Cosby, the trial judge had declared him a sexually violent predator who could not be safely allowed out in public and needed to report to authorities for the rest of his life.In May, Cosby was denied parole after refusing to participate in sex offender programs behind bars. He said he would resist the treatment programs and refuse to acknowledge wrongdoing even if it meant serving the full 10 years.The groundbreaking Black actor grew up in public housing in Philadelphia and made a fortune estimated at $400 million during his 50 years in the entertainment industry that included the TV shows “I Spy,” “The Cosby Show” and “Fat Albert,” along with comedy albums and a multitude of television commercials.The suburban Philadelphia prosecutor who originally looked into Constand’s allegations, Montgomery County District Attorney Bruce Castor, considered the case flawed because Constand waited a year to come forward and stayed in contact with Cosby afterward. Castor declined to prosecute and instead encouraged Constand to sue for damages.Questioned under oath as part of that lawsuit, Cosby said he used to offer quaaludes to women he wanted to have sex with. He eventually settled with Constand for $3.4 million.Portions of the deposition later became public at the request of The Associated Press and spelled Cosby’s downfall, opening the floodgates on accusations from other women and destroying the comic’s good-guy reputation and career. More than 60 women came forward to say Cosby violated them.The AP does not typically identify sexual assault victims without their permission, which Constand has granted.Cosby, in the deposition, acknowledged giving quaaludes to a 19-year-old woman before having sex with her at a Las Vegas hotel in 1976. Cosby called the encounter consensual.On Wednesday, the woman, Therese Serignese, now 64, said the court ruling “takes my breath away.”“I just think it’s a miscarriage of justice. This is about procedure. It’s not about the truth of the women,” she said. Serignese said she took solace in the fact Cosby served nearly three years behind bars: “That’s as good as it gets in America” for sex crime victims.———This story has been corrected to show that the Pennsylvania Supreme Court did not express an opinion on the use of additional accusers———Follow Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale
Authorities in Pennsylvania have filed an arrest warrant in a 2013 campus attack at Gettysburg College after a years-long campaign by the woman who said she was rapedBy MARYCLAIRE DALE Associated PressJune 29, 2021, 8:34 PM• 4 min readShare to FacebookShare to TwitterEmail this articlePHILADELPHIA — A Pennsylvania judge on Tuesday signed an arrest warrant charging a former Gettysburg College student with sexual assault, nearly eight years after a freshman went to police over a dorm room encounter and a year after she received an online message that said, “So I raped you.”Police say they are looking for 28-year-old Ian Cleary of Saratoga, California, but had not yet located him. The affidavit filed along with the warrant says police got a search warrant for Cleary’s Facebook account to link him to the message through a matching cell phone number.The affidavit accuses Cleary, then a junior and a goalie on the ice hockey team, of stalking Shannon Keeler at a fraternity party in December 2013. He then followed her home to her dorm, snuck into her room and sexually assaulted her, the warrant said. As he apologized and fled, Keeler texted friends on campus “OMG please Help me,” according to the warrant.Keeler had discussed the experience — and her long push for charges — in a recent story by The Associated Press that detailed the frequent reluctance among prosecutors to file charges in campus rape cases. Keeler went to police hours after the encounter and had a rape kit done at a local hospital, only to graduate three years later without an arrest. Authorities at the time told her it was difficult to prosecute cases when the victim had been drinking, she said. The rape kit was later lost.“While I am moved to tears by this result, which I have waited for over seven years, I am mindful that this moment came because I went public with my story, which no survivor should have to do in order to obtain justice,” said Keeler, now 26, in a statement issued to AP through her lawyer.The warrant filed Tuesday was signed by a new county prosecutor, Adams County District Attorney Brian Sinnett. The Gettysburg Police Department reopened the case last year after Keeler showed them a flurry of messages that appeared to come from Cleary’s Facebook account.The AP previously did not name Cleary because he had not been charged, and had not been able to reach him for comment. Now that the arrest warrant has been issued, The AP is using his name.A cell phone linked to Cleary rang unanswered Tuesday and did not have voice mail. Messages left at phone numbers associated with his father in California and his mother in Maryland were not immediately returned.The alleged assault occurred on the final night of Keeler’s first semester at Gettysburg, when few students were still on campus.Keeler had stayed an extra day because a snowstorm had delayed her last exam until that Saturday. Cleary never returned to campus after that semester, ending the school’s Title IX investigation, she said.Victim advocates say that campus sexual assaults frequently occur during a victim’s first year.Keeler felt she had a strong case, and was persistent in her efforts to gather evidence that included witnesses at the frat party, her frantic texts seeking help, hospital rape exam, and a statement from a male friend who escorted her home from the party to keep her safe — and says Cleary followed them and offered $20 to leave him alone with Keeler.“It has bothered me over the years that I was never able to do anything,” said Keeler told the AP this spring. “If you’re not going to help me, who are you going to help? Because I do have evidence.”Only one in five college sex assault victims report to police. And when they do, prosecutors often hesitate to take cases where victims had been drinking or knew the accused.Cleary appears to have lived in Europe in recent years, after graduating from a school in California. The efforts to locate him could stretch across the country and overseas, officials said.———Follow Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale