Bill Cosby

Bill Cosby, center, leaves the Montgomery County Courthouse in Norristown in 2018. Pennsylvania’s highest court has overturned the comedian’s sexual assault conviction. — AP Photo/Matt Slocum,

A jury may have convicted comedian Bill Cosby of sexual assault but he was saved by a technicality.

That technicality came in the form of a deal made between former Montgomery County District Attorney Bruce Castor and Cosby in 2005, according to the state Supreme Court opinion on Wednesday that led to Cosby’s release.

Castor agreed not to criminally prosecute Cosby over Andrea Constand’s sexual assault allegations in exchange for Cosby foregoing his Fifth Amendment right when testifying in a later civil action brought by Constand, according to the Supreme Court’s opinion.

“D.A. Castor’s successors did not feel bound by his decision, and decided to prosecute Cosby notwithstanding that prior undertaking,” the opinion said.

“The fruits of Cosby’s reliance upon D.A. Castor’s decision — Cosby’s sworn inculpatory testimony — were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal trial.”

Keir Bradford-Grey, a partner at Montgomery McCracken Walker & Rhoads LLP, said the Supreme Court opinion followed the law of due process. Cosby’s agreement with Castor was basically a contract and should be honored, she said.

“That’s the way our justice system should work,” Bradford-Grey said. “Despite what we feel about the actor or person, due process is required for everyone.”

Michael Coard, a civil rights attorney and columnist for The Philadelphia Tribune, said via text message that the state Supreme Court “issued a good ruling for a bad man.”

Coard said that trials were not about what a defendant has done but rather what a prosecutor does in the courtroom.

“In criminal trials, the question is never whether a defendant committed the crime,” he said. “Instead, the question is always whether the prosecution proved the defendant’s guilt beyond a reasonable doubt by adhering to proper legal procedure, which means by following the due process rules mandated by the Constitution.”

Bradford-Grey, the city’s former top public defender, said the agreement between Cosby and Castor was “unusual” and “rare” because it involved a prosecutor wading into a civil case. Immunity agreements in exchange for information happen regularly in criminal cases.

“Generally, you don’t see a prosecutor interfering with the civil remedy the way this happened,” she said.

Invoking one’s Fifth Amendment right not to incriminate oneself in a civil action can be taken as an inference of some guilt by a jury, Bradford-Grey said.

Kevin Mincey, a criminal defense attorney and partner at Mincey Fitzpatrick Ross, said the decision from the state’s top court that found succeeding prosecutors could not go back on Castor’s agreement was “fairly obvious from the outset.”

“It’s encouraging to know that if a prosecutor gives you his word, the next administration can’t immediately come in and change that,” Mincey said.

Mincey added that Cosby most likely would have invoked his Fifth Amendment rights and avoided giving certain testimony during the civil action. Cosby’s testimony in that civil action was later used in the criminal case against him.

Coard said the former Montgomery County district attorney misled Cosby into incriminating himself in a civil case through the agreement.

“And then that same office later turned around and used that very same deposition statement against him anyway,” Coard said. “That’s not a minor technicality. That’s a blatant and deceitful violation of the Constitution’s Fifth Amendment.”

Constand filed a civil action against Cosby in 2005, less than a month after Castor publicly disclosed he would forego criminally prosecuting Cosby in a press release. Cosby gave damning testimony during his depositions. Constand settled her civil suit with Cosby for $3.38 million.

In 2018, a jury convicted Cosby of three counts of aggravated indecent assault stemming from a 2004 incident with Constand in Cosby’s Cheltenham, Pa., residence.

Cosby was serving a sentence of three to 10 years in prison for sexual assault when the state Supreme Court overturned his conviction this week. The court also barred any future prosecution of Cosby on those charges.

Prosecutors can appeal the state Supreme Court’s decision to the U.S. Supreme Court.

Sixty women have accused Cosby of sexual assault spanning decades.

While Mincey understood the outrage by some over the state’s top court overturning Cosby’s conviction, he said an opposite decision by the state court would have set a precedent and chipped away at the bedrock of the justice system.

“They could not allow there to be a precedent that exists where a prosecutor can go back on their word when someone has waived a right,” Mincey said. “That’s bigger than Bill Cosby.”

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