Creators: The State Must Be Bound by Its Word

Matthew T. Mangino
Creators
December 3, 2024

The Illinois Supreme Court recently overturned Jussie Smollett's conviction for falsely portraying himself to police as the victim of a hate crime. The decision evokes comparison to Pennsylvania's high court ruling vacating actor and comedian Bill Cosby's 2018 sexual assault conviction.

While the crimes and history of criminal conduct are very different, there are similarities that should make practitioners of criminal law take heed. In both cases, ambitious prosecutors using the notoriety of the accused breached their obligation to follow the law and protect the due process rights of the accused.

Cosby was investigated by the Montgomery County District Attorney's office in 2005 for the alleged sexual assault of Andrea Constand. The then-District Attorney Bruce Castor, a lawyer who later defended President-elect Donald Trump during his second impeachment trial, found "insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt."

In an unusual move, Castor filed a civil lawsuit against Cosby on behalf of Constand. If Cosby sat for a deposition in the civil case and told the truth, Castor agreed not to prosecute him.

Cosby testified in the civil case without invoking his Fifth Amendment privilege against self-incrimination. He admitted to taking women to his Montgomery County home, drugging them and sexually assaulting them. The civil suit was settled.

Castor's campaign opponent in 2015, Kevin Steele, made the Cosby prosecution a campaign issue. In the final weeks of their campaigns, according to The Guardian, Castor and Steele ran attack ads against each other over not charging Cosby with sexual assault during their respective tenures in the county DA office.

Steele rode Cosby's prosecution to victory. After taking office, Steele charged Cosby with sexual assault. Steele used Cosby's deposition testimony at trial and won a conviction.

Soon after Cosby was convicted, Smollett was indicted for 16 felony counts of disorderly conduct for allegedly lying to Chicago police. He was accused of hiring two brothers in 2019 to make it appear as though he was the victim of a hate crime.

A couple of weeks after the indictment, the district attorney's office reached an agreement with Smollett and his legal team to drop the charges. Prosecutors took into consideration Smollett's history of volunteer work in the city and his agreement to forfeit his $10,000 bond. He did 15 hours of community service and the charges were dismissed.

However, due to mounting public pressure, including a harsh rebuke from the mayor of Chicago, a Cook County judge appointed a special prosecutor in June 2019 to conduct an independent investigation of Smollett's case.

Smollett was later indicted on six charges of disorderly conduct. He was convicted on five of those charges in December 2021.

Cosby and Smollett both appealed their convictions.

In 2021, the Pennsylvania Supreme Court ruled that Cosby was unfairly prosecuted because he agreed to testify without invoking his Fifth Amendment right based on a deal made with the DA.

For Smollett, the outcome was similar. The Illinois Supreme Court ruled, "Because the initial charges were dismissed as part of an agreement with defendant and defendant performed his part of the agreement, the second prosecution was barred."

Joseph Cammarata, a Washington, D.C.-based attorney and partner at Chaikin, Sherman, Cammarata and Siegel, told CNN, "A special prosecutor was appointed and sought to undo what the state had agreed to, and the (Illinois Supreme Court) said, 'no, we're not going to allow that because it's not just, it's not fair, and the state must be bound by its word.'"

Both the Illinois and Pennsylvania Supreme Courts agreed that a man or woman accused of a crime must be able to trust a bargain made with the county's top prosecutor. Anything less would undermine the criminal justice system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

To visit Creators CLICK HERE