The Cosby Decision in a Nutshell: Fundamental Fairness, Prosecutorial Accountability and Bias in the Criminal Justice System

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Thomas Becker
August 4, 2021

Author’s note: The opinions expressed in this article are solely those of the author, and do not necessarily reflect those of any other members of the Iowa Chapter of the American Society for Public Administration.

Through the media fallout from the Pennsylvania Supreme Court’s decision to overturn Bill Cosby’s sexual assault conviction, there have been a lot of details missing that need to be understood by the American public. The media references to the grounds for the decision as “procedural” and a “technicality” don’t do justice—and “justice” is the right word—to the egregious constitutional violation Cosby’s prosecutors committed, a shortcoming compounded by the prosecutors’ refusal to own up to what they did. Perhaps worst has been the absence of any meaningful discussion of the implicit bias in the United States criminal justice system in favor of the rich and powerful. After all, none of this would have happened if Cosby were someone of lesser wealth and celebrity.    

The Fourteenth Amendment to the U.S. Constitution, ratified in the aftermath of the Civil War, imposed accountability on the states to respect the fundamental rights of their citizens. Prior to that time, the Bill of Rights applied only to the central United States government. Each state was free to deny its citizens basic freedoms like citizenship, equal protection of the law and due process—and many did. The Fourteenth Amendment reads:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law….”

It is this last clause that Cosby’s prosecutors violated, and it wasn’t a mere “procedural” or “technical” violation.          

The U.S. Supreme Court has said that, “Due process of law,” means two things. “Procedural due process,” means a citizen must have notice and an opportunity to be heard before life, liberty or property may be put into jeopardy in the judicial process. “Substantive due process,” means police and prosecutors must act with fundamental fairness in enforcing criminal laws. The violation in the Cosby case affected his, “Substantive due process,” rights. While the Court has acknowledged the, “Often competitive enterprise of ferreting out crime,” it also has said a prosecutor, while free to, “Strike hard blows, … is not at liberty to strike foul ones.” The prosecutors struck a foul blow.

The Philadelphia District Attorney announced a public decision not to prosecute Cosby for the express purpose of forcing him to testify in the civil lawsuit filed by one of his victims. If Cosby had been facing criminal prosecution, he would have been allowed to assert his Fifth Amendment right against self-incrimination as a basis for refusing to be deposed and testify at the civil trial. The public promise not to prosecute took the right against self-incrimination away from him. Cosby was required to testify in the civil case and made damaging admissions that undermined that defense. Given that the district attorney (DA) had promised not to prosecute, this should not have been concerning.

Later, a new Philadelphia DA reneged on his predecessor’s agreement not to prosecute, claiming he had not agreed to it so he wasn’t bound by it—which is incorrect when a prosecutor is acting on behalf of the state, not as an individual attorney. As we all know, the new DA prosecuted and used Cosby’s civil suit testimony to get his conviction. This prosecution promise is what the Pennsylvania Supreme Court declared to be a violation of Cosby’s due process rights. It also is what has been inaccurately dismissed in the media coverage as a “procedural” issue and a “technicality.”

The Due Process Clause is neither “procedural” or a “technicality.” Its protection is the only thing that separates America’s criminal justice system from the corrupt courts of Pakistan, Venezuela, Cameroon and other countries, where courts exist only to rubber-stamp decisions by political authorities. Time and again, the U.S. Supreme Court and other American courts have condemned police and prosecutorial conduct that is fundamentally unfair, whether the case is about pumping the stomach of a drug suspect without consent or a search warrant, hiding evidence that might have exonerated a defendant, using rules of evidence to prevent an accused from defending himself at trial or breaking a promise made not to prosecute someone. The Pennsylvania prosecutors violated a constitutional right fundamental to all Americans. It holds the status and importance of any other constitutional violation.

Cosby’s prosecutors responses to the decision have been a disappointing exercise in evading responsibility. One wonders how many times they have argued for a stiffer sentence because the defendant refused to take responsibility for the crime. The reversal of Cosby’s conviction is not the Pennsylvania Supreme Court’s fault; it is his prosecutors’ fault in violating the Constitution.

There also needs to be recognition that this case is symptomatic of a profound flaw in the American criminal justice system: Its bias is in favor of those with wealth and power, factors that are exponentially compounded by celebrity. As has been said about the O.J. Simpson trial, “It wasn’t about race, it was about celebrity; if O.J. had been, ‘Orenthal the Bus Driver,’ he’d be in prison.” The promise not to prosecute was derived by Cosby’s wealth and celebrity. If Cosby had been an ordinary person, no one would have been lining up to sue him. He had the means to compensate his victims and without the specter of the civil suits, the first DA would have had no reason to publicly announce his decision not to prosecute so Cosby would no longer be able to “plead the 5^th.” For the typical alleged offender, a non-celebrity with next-to-no wealth, the prosecutor would have decided not to prosecute without the public promise.

This implicit bias needs to be discussed. The wealthy have capacity to hire attorneys, make bail and stay as removed from the jailhouse system as possible, eliminating any admissions made while in custody. They can afford lawyers who work nearly exclusively on their cases in exchange for large fees. Poor people settle for public defenders or retain lower-fee private practitioners with large caseloads. The wealthy, when charged with a crime, enjoy a true presumption of innocence. The first thing judges and juries think when a poor person appears in court is, “I wonder what she did.” The list goes on.

Trying to remove, or even reduce, the implicit bias in favor of the rich and famous is a monumental task­—perhaps impossible. But there never will be progress without starting the conversation. There will never be progress in reducing the due process violations committed by authorities in this country unless they are acknowledged as the profound constitutional violations they are. This starts with prosecutors taking responsibility for those violations and the media calling them out when they try to deflect blame.

This has been missing in the media coverage of the Cosby case, and that’s a failure.

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Author: Tom Becker is a retired lawyer in Des Moines, Iowa. He entered the U.S. Air Force as a judge advocate and retired from the Air Force as a colonel in 1999. He was appointed state public defender for the State of Iowa, heading the agency, and later returned to the Air Force as academic director for the Air Force Judge Advocate General’s School in Montgomery, Alabama. In 2019, he was awarded ASPA’s National Public Service Award. He retired in 2019 and returned to Iowa, where he teaches at Des Moines Area Community College and conducts training for the Iowa State Public Defender System, mentors law students at Drake University School of Law and is president of the Iowa Chapter of the American Society for Public Administration. He graduated from Washburn University in 1974 and the Washburn University School of Law in 1977. He also received an advanced degree in constitutional and criminal law from The George Washington University School of Law. He can be reached at [email protected]

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