Cosby’s prosecutors ask justices to review ruling

PHILADELPHIA — Prosecutors asked the U.S. Supreme Court to review the ruling that overturned Bill Cosby’s sexual assault conviction, arguing in a petition Monday that a dangerous precedent could be set if news releases are treated as immunity agreements.

Cosby’s lawyers have long argued that he relied on a promise that he would never be charged when he gave damaging testimony in an accuser’s civil suit in 2006. The admissions were later used against him in two criminal trials.

The only written evidence of such a promise is a 2005 news release from the then-prosecutor, Bruce Castor, who said he did not have enough evidence to arrest Cosby.

The release included an ambiguous “caution” that Castor “will reconsider this decision should the need arise.” The parties have since spent years debating what that meant.

“This decision as it stands will have far-reaching negative consequences beyond Montgomery County and Pennsylvania. The U.S. Supreme Court can right what we believe is a grievous wrong,” Montgomery County District Attorney Kevin Steele wrote in the petition, which seeks a high court review under the due process clause of the U.S. Constitution.

Prosecutors have also complained that the chief judge of the state’s high court appeared to misstate key facts of the case when he discussed the court ruling that overturned Cosby’s conviction in a television interview.

Castor’s successors, who gathered new evidence and arrested Cosby in 2015, say the promise falls far short of a lifetime immunity agreement. They also doubt that Castor ever made such a deal. Instead, they say Cosby had strategic reasons to give the deposition rather than invoke his Fifth Amendment right to remain silent, even if it backfired when “he slipped up” in his rambling testimony.

However, defense lawyers say the case should never have gone to trial because of what they call a “nonprosecution agreement.”

Cosby, 84, became the first celebrity convicted of sexual assault in the #MeToo era when the jury in his 2018 retrial found him guilty of drugging and molesting college sports administrator Andrea Constand in 2004.

He spent nearly three years in prison before the Pennsylvania Supreme Court set him free in June.

Steele’s bid to revive the case is a long shot. The Supreme Court accepts fewer than 1% of the petitions it receives. Legal scholars and victim advocates will be watching closely, though, to see if the court takes an interest in a high-profile #MeToo case.

Two justices on the court, Clarence Thomas and Brett Kavanaugh, were accused of sexual misconduct during their bitterly fought confirmation hearings.

Appellate judges have voiced sharply different views of the Cosby case. An intermediate state court upheld the conviction. Then the seven justices on the Pennsylvania Supreme Court wrote three separate opinions on it.

The majority found that Cosby relied on the decision not to prosecute him when he admitted giving a string of young women drugs and alcohol before sexual encounters. The court stopped short of finding that there was such an agreement, but said Cosby thought there was — and that reliance, they said, marred his conviction.

But prosecutors call that conclusion flawed. They note that Cosby’s lawyers objected strenuously to the deposition questions rather than let him speak freely.

Cosby himself has never testified about any agreement or promise. The only alleged participant to come forward is Castor, a political rival of Steele’s who went on to represent President Donald Trump in his second impeachment trial. Castor said he made the promise to a now-dead defense lawyer for Cosby, and got nothing in return.

He never mentioned it to top assistant Risa Ferman, who led his Cosby investigation.

She later became district attorney, and reopened the case in 2015 after a federal judge unsealed Cosby’s deposition.

At a remarkable pretrial hearing in February 2016, Castor spent hours testifying for the defense. He said he typed out the news release himself, after office hours, and intended it to convey different layers of meaning to the lawyers, the press and the public.

The judge found him not credible and sent the case to trial.

The Pennsylvania Supreme Court, in its June 30 ruling, called Cosby’s arrest “an affront to fundamental fairness.”

Weeks later, the ruling prompted the state attorney general to dismiss charges against a jail guard accused of sexually abusing female inmates because of an agreement with county prosecutors that let him resign rather than face charges.