What Bill Cosby’s Release From Prison Teaches About Behind-the-Scenes Pretrial Negotiations and Criminal Legal Tactics Before Trial
The recent release of entertainer Bill Cosby from prison has come as a shock to many who are now questioning the legitimacy of the legal system. Understanding how Mr. Cosby was charged and subsequently released three years later is rooted in understanding the risk analysis and bargaining that occurs between defense attorneys and district attorneys before a trial begins.
Mr. Cosby was in the first wave of high-profile casualties of the #MeToo movement that encouraged women to report their sexual assailants regardless of their station. Mr. Cosby was involved in two trials in relation to his misconduct. The first of these trials, a civil lawsuit, occurred in 2006 after being sued over financial damages for an assault in 2004 of employee Andrea Constand. While multiple women came forward to regale their story of being sexually assaulted by Cosby, it is important to understand that charges were only filed for the assault on Ms. Constand. Later, in 2015, criminal charges were filed against Cosby for the same case. Cosby was sentenced in 2016 to three 10-year sentences, for a total of 30 years. Mr. Cosby’s defense team, led by attorney Jennifer Bonjean, appealed the decision to the Pennsylvania Supreme Court. On June 30th, 2021, Mr. Cosby was released from prison after a state Supreme Court decision ruled that Mr. Cosby was improperly criminally charged in 2015.
The court’s finding is due to a disconnect in the legal strategy employed by the two district attorneys that dealt with Cosby’s cases from 2004 to 2015. It is important to remember that victims themselves do not hire attorneys to press charges against their assailants in criminal cases. The state is tasked with charging and proving criminal charges against defendants, and it does so under its own discretion. The legal strategy that district attorneys employ is informed by the victim’s story but not controlled by the victims themselves. In 2005, the district attorney assigned to Mr. Cosby’s case was Bruce Castor. Although Castor believed the story told by Ms. Constand, Castor did not believe that he could win Ms. Constand’s case in criminal court. This decision was based on two factors.
First, in a criminal trial, Mr. Cosby had the right to not testify or “take the fifth” (referring to the United States Constitution’s Fifth Amendment right to avoid self-incrimination).
Second, the burden of proof in a criminal trial is “beyond a reasonable doubt,” the highest burden in American trial law. Castor thought that without statements made by Cosby under oath, the evidence that Ms. Constand could provide the court would not be enough to reach the high burden of evidence required for a conviction. Instead, Castor offered Cosby a binding settlement deal.
Castor proposed that Cosby testify in a civil case, and in exchange, would decline to charge Cosby criminally. Cosby accepted the offer and admitted in testimony in the 2006 civil lawsuit that he had, in fact, assaulted Ms. Constand. The settlement awarded Ms. Constand over 3 million dollars in damages, and Cosby escaped criminal charges until 2015.
At this point, you may be wondering why Castor agreed not to charge Cosby criminally when Cosby confessed in the civil suit. The law is designed to protect individuals from self-incrimination. The Fifth Amendment functionally puts the burden of proving any criminal case in the hands of the state. This same concept applies in a civil case. However, the burden for proving a civil case is by a preponderance of the evidence, meaning (essentially) 51%. Mr. Castor believed that a civil jury would find the lower burden met, and so did Cosby. Castor made a deal with Cosby to ensure that Ms. Constand won her civil lawsuit by getting Cosby to relinquish his Fifth Amendment right to stay silent. To understand why Castor wanted to avoid a criminal trial, you have to understand pretrial negotiations and trial risks.
Most criminal defense work is done outside of trial. As any good attorney will tell you, there is no such thing as a guaranteed trial win in criminal law, no matter how strong or weak the evidence may seem. This concept provides each side, the state, and the defense, with bargaining tools needed to come to a pretrial resolution. Especially in high-profile cases and in cases with intense criminal charges, the state fears a not-guilty verdict. Victims want to see their accusers punished, and the public wants to see the courts dispensing justice. Frequently in cases where district attorneys do not believe that they can get convictions at jury trials against defendants, they will offer defendants concessions on charges in exchange for pleading guilty or agreeing to some other action that will result in a public perception of “justice.” This is the reason that most criminal cases do not result in a trial. The way the 2018 criminal trial for Cosby played out is proof of this concept.
By 2015, a new district attorney had taken over in Montgomery County, Pennsylvania. Kevin Steele believed that Cosby should be prosecuted criminally for the charges brought forth by the state in the assault against Ms. Constand. Using the testimony from the civil case in which Cosby admitted to the assault, in addition to calling five external witnesses who also testified to having been assaulted by Cosby, Steele had more than enough evidence to prove the state’s case against Cosby beyond a reasonable doubt. A jury of Cosby’s peers found him guilty, and he was sentenced in 2018.
After appeal, Pennsylvania’s Supreme Court threw out the charges on two grounds.
First, the judge in the criminal case allowed five other witnesses to testify to being sexually assaulted by Cosby prior to his assault on Ms. Constand. Charges were not filed on behalf of these witnesses due to the statute of limitation on their charge and a lack of evidence to prove their claims. The Supreme Court found that their testimony was, therefore, more prejudicial than probative and inadmissible under state rules of evidence.
Second, and more importantly, the court found that the state was not allowed to charge Cosby pursuant to the agreement Castor made with him in 2015.
The Pennsylvania Supreme Court did not determine that Cosby was innocent of sexual assault. The court was protecting Cosby’s due process right to have state agreements upheld. Cosby cannot be prosecuted for crimes committed against Ms. Constand pursuant to the 2006 settlement; however, he can still be prosecuted for alleged assaults on other victims.
This case provides insight into the area in which most legal defense work is done, pretrial negotiations and agreements. Despite Cosby’s guilt, his defense team was able to negotiate him out of criminal conviction in 2005, a negotiation that would lead to his release in 2020. All persons, regardless of criminal nature, are entitled to due process and the upholding of their rights. In this case, those rights included the enforcement of a pretrial settlement that included immunity from criminal charges.
Cosby’s case is a good example of how a skilled defense negotiator can both favorably plead your case and protect you from future consequences. If you are accused of a crime, it is important to have a skilled and experienced negotiator on your side. Casey Krizman at Krizman Law has a proven track record of persuading state district attorneys to agree to favorable outcomes for his clients.
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Mr. Krizman is a criminal defense attorney in Denver, Colorado. He specializes in providing relentless defense for domestic violence, DUI, and drug crimes. He is a former public defender who has also worked for a district attorney and is licensed in the State of Colorado, and the United States Federal Court, District of Colorado. Mr. Krizman is a member of the Colorado Criminal Defense Bar, Colorado Bar Association, Denver Bar Association, and Arapahoe County Bar Association. A Colorado native, he has a law degree from the University of Denver Sturm College of Law, and a bachelor’s degree in Government and World Affairs from the University of Tampa. Call him today at 720.819.7317.