PLW: More to Cosby Prosecution Than Meets the Eye

Matthew T. Mangino

Pennsylvania Law Weekly

January 12, 2016

Getting elected is the easy part; governing is the real challenge. Ask Kathleen Kane. She campaigned for attorney general on an issue that resonated with Pennsylvania voters—did the Attorney General's Office drag its feet during the Penn State-Jerry Sandusky investigation to shield former Attorney General Tom Corbett during his campaign for governor.

Kane's investigation of the investigation revealed no wrongdoing, but you can trace the unraveling of her career and the crisis in statewide politics to that campaign-driven decision about the Sandusky investigation.

As Kevin R. Steele takes over as district attorney of Montgomery County, he needs to be cautious that his first act as district attorney-elect—filing sexual assault charges against Bill Cosby—doesn't put him on a similar track to self-destruction.

There have been as many as 50 women who have made allegations against Cosby. If even a fraction of those allegations are true, Cosby is a sexual predator and a threat to all women. At stake in this case is more than a criminal prosecution—the perception and legitimacy of prosecutorial discretion may be at issue as well.

The Cosby case has a lot of the same characteristics as Kane's ongoing scandal. Cosby became an issue in the Montgomery County race, just as Sandusky was an issue in Kane's campaign for attorney general. Bruce L. Castor Jr., a Republican, was running again for district attorney after a stint as a Montgomery County commissioner. His opponent was Steele, a Democrat, who was Montgomery County's first assistant district attorney.

During the campaign, Steele produced a commercial that challenged Castor for not filing charges against Cosby when Castor was district attorney in 2005. Castor responded, suggesting that Steele had 10 years as an assistant district attorney to file charges against Cosby.

Castor declined to prosecute Cosby for the sexual assault of Andrea Constand in 2005. A press release from Castor at the time set forth this reasoning: "The district attorney finds insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt. In making this finding, the district attorney has analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby possessed the requisite criminal intent."

Castor also cast a shadow over Constand, adding, "Much exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light."

On Dec. 30, Steele announced charges against Cosby. He explained that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again.

The indictment came just days before the statute of limitations would have expired, preventing Constand from seeking criminal charges against Cosby—a fate similar to every other woman who had publicly accused Cosby.

In 2002, the statute of limitations for sexual crimes was extended to 12 years.

The new law applied to any case in which the statute of limitations had not yet expired before the law took effect. Pursuant to Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super. 1988), the time for prosecution may be extended by a legislative change if the prior period has not yet expired. Without the change in the law, the statute of limitations would have expired in 2009.

Similar to Kane's scandal, there is contentious litigation surrounding the Cosby prosecution.

In November 2006, Cosby settled with Constand for an undisclosed amount. The settlement came with a confidentiality agreement, preventing either party from disclosing the terms.

Last summer, Constand and her attorneys asked the judge in the civil case to void the confidentiality agreement. Constand's attorneys argued that allegations by other women constituted a violation of the agreement and had rendered it void. In turn, Cosby demanded his settlement money returned.

Last year, Constand also filed a defamation lawsuit against Castor, who'd given an interview in which he said Constand's police report did not contain all the information that was later included in her civil lawsuit.

In fact, Constand became so entrenched in Steele's campaign against Castor that her lawyer, Dolores Troiani, told the Philadelphia Inquirer that if Castor would have won, Constand would have likely backed out of the case.

After Castor lost the election, Constand's attorney said she was looking forward to deposing Castor. Unfortunately for Steele, the new district attorney, he may not escape the reach of a discovery deposition.

Sexual assault allegations are often difficult to prove. Absent physical evidence, most sexual assault cases come down to the victim alleging assault and the accused claiming consent—not unlike the Cosby case. Prosecutors are suggesting that new evidence has been discovered,

What's new in this case?

In a deposition connected to the civil suit filed by Constand, Cosby admitted he obtained prescriptions for quaaludes in the 1970s for purposes of having sexual relations. Methaqualone was a popular drug in the 1970s and legally available.

Benjamin Brafman, a prominent New York criminal defense attorney, told Time, "Quaalude was the love drug of choice in those years. Doctors were lawfully prescribing it in those years."

Steele claims this information was an important factor in his decision to file charges, but Cosby's deposition testimony about quaaludes is not a central component of his case against Cosby.

What the charges reveal is that prosecutors had sufficient information to charge Cosby for more than a decade. According to Think Progress, the biggest thing that's changed since 2005 is not the information that was available to prosecutors but the media environment and the public perception of Cosby.

The fact that other women have come forward would probably be inadmissible in a criminal trial, unless the prosecution intends to show a course of conduct or modus operandi, both of which may still be a stretch. However, according to the affidavit of probable cause filed with the criminal complaint against Cosby, he also made incriminating statements to the victim's mother.

The basic facts of the case are straightforward and undisputed. Cosby met and befriended Constand through their respective connections with Temple University. In January 2004, Cosby called Constand and invited her to his home to discuss her career. He then gave her pills and alcohol. Soon after, Cosby began to fondle Constand, including penetrating her vagina with his fingers.

The question for prosecutors has always been whether the contact between Cosby and Constand was consensual.

Why a 10-year delay in filing charges? Politics.

When politics seeps into governance, the results are rarely good. This is not to say that Constand is not entitled to justice, or the other alleged victims for that matter, but why is being allegedly drugged and sexually assaulted now somehow more egregious than it was in 2005 or every year since then?

There is a lot more at stake than a single case of sexual assault. The factors that influence prosecutions—whether to deny a prosecution or reopen an investigation and file charges—are wrapped up in this single case. Confidence in the criminal justice system is riding on the outcome of this case and a verdict may not answer all the questions. 

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