The first major criminal conviction of the #MeToo era fell apart on Wednesday, with former TV star Bill Cosby walking out of prison a free man.
The Pennsylvania State Supreme Court ruled Wednesday to vacate his 2018 conviction and sentence for sexual assault, finding that Cosby had been double-crossed by prosecutors who reneged on a public declaration not to prosecute him. At about 2:30 p.m., just two hours after the ruling, he walked out of SCI Phoenix, a state prison outside Philadelphia.
“Everyone’s mind is blown right now,” former federal prosecutor Neama Rahman told The Daily Beast. “This is extremely rare. This is unprecedented.”
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Cosby, 83, was convicted by a jury of three counts of aggravated indecent assault for drugging and sexually assaulting Andrea Constand at his Elkins Park, Pennsylvania, home in January 2004. Six women were allowed to give testimony during the trial to show a pattern of similar conduct. (At least 46 women later accused Cosby of rape or sexual assault.)
Constand and her lawyers blasted Cosby’s release in a statement Wednesday, warning that the overturned conviction could “discourage those who seek justice for sexual assault in the criminal justice system from reporting or participating in the prosecution of the assailant or may force a victim to choose between filing either a criminal or civil action.”
The entertainer had served just over two years of a three- to 10-year sentence, and said he would sooner serve the full decade than show remorse. He was denied parole last year for refusing to participate in a jailhouse treatment program for sex offenders.
Cosby was picked up from prison by spokesman Andrew Wyatt, who told NBC News, “This is what we have been fighting for and this is justice and justice for black America... He was given a deal, and he had immunity. He should have never been charged.”
Flanked by his lawyer, Cosby later appeared outside his Elkins Park home but didn’t speak, instead waving and nodding along as they said he had been imprisoned by a “crooked” judicial system. A single protester stood alone, calling out, “We believe the women! We believe the survivors!”
He later tweeted: “I have never changed my stance nor my story. I have always maintained my innocence.”
The voiding of his sentence on Wednesday stemmed from a murky agreement not to prosecute Cosby that was then contradicted by successive district attorneys working on the case.
Montgomery County District Attorney Bruce Castor—who went on to star in President Donald Trump’s second impeachment defense team—initially declined to prosecute Cosby in 2005 because he felt that Constand’s testimony was unreliable, she reported the assault too long after the fact, and there was not enough corroborating evidence. Without a confession from Cosby, there was no case, Wednesday’s ruling noted.
The refusal to prosecute Cosby paved the way for Constand to sue the entertainer in civil court, forcing Cosby to give testimony, under penalty of perjury, that was not protected by the Fifth Amendment right against self-incrimination.
Cosby was under the impression that his eye-popping testimony—which included descriptions of drugging and sexually assaulting women—couldn’t be used as evidence in a criminal trial because a prosecutor had told him he wouldn’t be charged, his lawyers argued in an appeal last summer.
Castor’s successors, however, “did not feel bound by his decision” not to prosecute, and subsequently used that testimony as the basis for a criminal prosecution in 2015, Wednesday’s ruling said.
“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,” the justices wrote.
They continued: “There is only one remedy that can completely restore Cosby to the status quo ante. He must be discharged, and any future prosecution on these particular charges must be barred. We do not dispute that this remedy is both severe and rare. But it is warranted here, indeed compelled.”
In a dissenting opinion, Chief Justice Thomas Saylor wrote, “I respectfully disagree with the majority’s determination that the press release issued by former District Attorney Bruce Castor contained an unconditional promise that the Commonwealth would not prosecute [Cosby] in perpetuity.”
Kristen Gibbons Feden, a former Cosby Special Prosecutor, also disputed that Castor’s decision was a formal agreement not to prosecute. Nevertheless, she told MSNBC on Wednesday, “Giving immunity to sexual predators… this really impairs or blocks a survivor’s road to justice and what it does is what’s happened today.”
Montgomery County District Attorney Kevin Steele said Cosby was let off on a “procedural issue” after being convicted by a jury. “My hope is that this decision will not dampen the reporting of sexual assaults by victims,” he said in a statement. “We still believe that no one is above the law—including those who are rich, famous and powerful.”
In his testimony for the civil suit, provided during a series of depositions in 2005 and 2006, Cosby confirmed that he obtained quaaludes with the intention of using them to knock out women he wanted to have sex with, as Constand described.
Describing an encounter at his Pennsylvania home in 2004, Cosby said a woozy Constand never explicitly agreed to have sex with him—but that she hadn’t said no, either.
“The action is my hand on her midriff, which is skin,” Cosby testified. “I’m not lifting any clothing up. This is, I don’t remember fully what it is, but it’s there and I can feel. I got her skin and it’s just above the hand and it’s just above where you can go under the pants... I don’t hear her say anything. And I don’t feel her say anything. And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.”
Cosby also described an arrangement he had during the production of one of his TV series in the early 2000s. A modeling agency would send a bevy of young women to his studio each week, Cosby explained.
In 2000, Cosby invited a young woman he had met through her parents over to his townhouse, he testified. There, he served her amaretto, even though she told Cosby she didn’t drink, and began to massage her shoulders and arms.
“On a later occasion you had her masturbate you with lotion,” Constand’s lawyer, Dolores Troiani, said. “Did that ever happen?”
“Yes,” replied Cosby.
“[She] used the lotion to rub your penis and make you ejaculate?” Troiani asked.
“Bingo,” Cosby said.
Constand agreed to settle the case in 2006 for nearly $3.4 million. “I just wanted to get it over with,” she explained during testimony near the start of Cosby’s criminal trial in 2018. “It tore me and my family apart and we just wanted to get it over with.”
Cosby, who grew up in public housing in Philadelphia, amassed a fortune estimated at some $400 million during a career that spanned a half-century.
He portrayed clean cut characters, and prosecutors said during his subsequent criminal trial that he used that “family man” image to gain the trust of women he later assaulted sexually.
“There was a built-in level of trust because of his status in the entertainment industry and because he held himself out as a public moralist,” Assistant District Attorney Adrienne Jappe argued in court.
Cosby’s first trial in 2017, after his arrest in late 2015, ended with a deadlocked jury. It is unknown if prosecutors will appeal his release or bring him to trial for a third time.
