Could the U.S. Supreme Court really send former convicted sex offender Bill Cosby back to prison? Maybe the first question should be: Will the nation’s high court even take the case?
Cosby foes hoping to see the 84-year-old comic once known as “America’s Dad” back behind bars should be forewarned: The odds are against it happening, according to legal analysts.
Cosby was freed from prison following a surprise decision this summer by the Pennsylvania Supreme Court to overturn his conviction. The ruling enraged Cosby’s accusers and prosecutors, released him from state prison after nearly three years into a 10-year sentence and shut down the possibility of a new, third trial.
District Attorney Kevin Steele, the Pennsylvania prosecutor who prosecuted Cosby in 2018, petitioned the Supreme Court last week to review the June 30 decision.
But the fact is, the U.S. Supreme Court accepts very few cases, less than 5% of those brought before it each year, according to Dennis McAndrews,a former Pennsylvania prosecutor-turned-defense attorney in the Philadelphia area.
More to the point, the court usually accepts only those cases of “unique national importance,” such as a disputed presidential election, or to resolve disputes on constitutional issues among the states or federal courts. The Cosby case is not typical, McAndrews says.
“The Cosby case is so novel that it does not involve a clear split of authority or dispute among the various courts in the nation, thus reducing the likelihood of the high court accepting this case, especially since it is not a matter of national importance,” McAndrews says.
“I can’t imagine the court taking this case,” adds Anne Coughlin,a professor of law at the University of Virginia’s law school and an expert on criminal law and procedure.
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Coughlin thinks that’s a shame because she believes the underlying issues in the case, including the possible abuse of prosecutorial discretion, are of “tremendous public interest.” She says the case has put a revealing spotlight on how prosecutors can exert “virtually unchecked power.”
“The problem is the facts of the case seem to be very unique,” Coughlin told USA TODAY.
Indeed: Cosby was accused of sexual assault in 2005, the local prosecutor at the time declined to prosecute for lack of evidence, and told Cosby he had immunity as long as the star sat for a confidential deposition in the accuser’s civil suit.
That deposition produced damaging evidence used by a different prosecutor to convict Cosby in 2018. The state high court threw out that conviction, ruling Cosby’s trial was unfair due to failure to uphold what amounted to an immunity deal.
“These facts (in the Cosby case) are unlikely to reoccur, they are so unusual,” Coughlin says.
A week after the state court’s ruling freeing Cosby in June, Coughlin published a column in the Washington Post arguing that “the stunning reversal shows that our criminal justice system is too often not ruled by law — it’s ruled by prosecutors.”
Unsurprisingly, Cosby’s lead appellate attorney, Jennifer Bonjean, told USA TODAY she rejects the argument that there are “important federal questions” in dispute that the court must address, thus making the case “ill-suited” to review by the U.S. Supreme Court.
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“This fact scenario has never occurred before and is unlikely to occur again. (The Supreme Court has) no interest in this case but we shall see,” Bonjean said.
The state court’s decision turned on whether Cosby received a fair trial and whether his Fifth Amendment and due process rights were violated by two different prosecutors in Montgomery County, Pa.
The reversal cited a promise of immunity by previous District Attorney Bruce Castor which the court said precluded Cosby being criminally prosecuted more than a decade later on allegations he molested a woman in his suburban Philadelphia home in 2004.
Cosby relied on that promise (which Castor announced in a press release) when he sat for a deposition in the woman’s civil suit, and damaging admissions in it were used by Steele to convict him at his trial.
Steele is now petitioning the U.S. Supreme Court to review the state court’s decision, also citing constitutional issues.
“The question presented to the Court is: ‘Where a prosecutor publicly announces that he will not file criminal charges based on lack of evidence, does the Due Process Clause of the Fourteenth Amendment transform that announcement into a binding promise that no charges will ever be filed, a promise that the target may rely on as if it were a grant of immunity?’ ” Steele’s statement said.
In his brief, Steele argued that the Cosby decision will lead to “jurisprudential upheaval” and nationwide uncertainty about whether “forever immunity” can be bestowed via a mere press release.
This might be an exaggeration, McAndrews says. “The uproar is largely confined to the Pennsylvania legal community,” he says, and among Cosby’s accusers who are furious he won’t serve the full prison sentence they believe he richly deserves.
It could take weeks or months before we know whether the court will take the case, which would require the votes of at least four justices. McAndrews notes that two justices on the court, Clarence Thomas and Brett Kavanaugh, were themselves accused of sexual misconduct during their confirmation hearings.
McAndrews said either or both might consider the Cosby case to be “a personal opportunity to speak on an issue involving an individual who has been accused of serial sexual misconduct.”
If the court does take the case, what could the justices do? Reverse the reversal? Send Cosby back to prison and back on the sex offenders list? Order a new trial in state court?
Theoretically, “all of the above,” Coughlin says.
But prosecutors might not be able to use the damaging deposition Cosby sat for under the promise of immunity, Coughlin says. “And it’s hard to imagine they can retry him without that.”
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