Bill Cosby prosecutors ask US Supreme Court to review case

Bill Cosby arrives for his sentencing hearing at the Montgomery County Courthouse in September 2018. Photo / AP

Prosecutors asked the US Supreme Court to review the ruling that overturned Bill Cosby's sexual assault conviction, arguing in a petition on Monday that a dangerous precedent could be set if press 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 press 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 US Supreme Court can right what we believe is a grievous wrong," Montgomery County District Attorney Kevin Steele wrote in the petition, which seeks a Supreme Court review under the due process clause of the US Constitution.

Cosby gesturing outside his home in Elkins Park after being released from prison in June. Photo / AP

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 it 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, defence lawyers say the case should never have gone to trial because of what they call a "non-prosecution agreement".

Cosby, 84, became the first celebrity convicted of sexual assault in the #MeToo era when the jury at 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 US Supreme Court accepts fewer than 1 per cent 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 — 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 defence 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 defence. He said he typed out the press 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 earlier agreement with county prosecutors that let him resign rather than face charges.

Cosby, a groundbreaking Black actor and comedian, created the top-ranked Cosby Show in the 1980s. A barrage of sexual assault allegations later destroyed his image as "America's Dad" and led to multimillion-dollar court settlements with at least eight women. But Constand's was the only case to lead to criminal charges.

Five of them testified for the prosecution to support Constand's claims, testimony that Cosby's lawyers also challenged on appeal. However, the state's high court declined to address the thorny issue of how many other accusers can testify in criminal cases before the evidence becomes unfair to the defence.

In a recent memoir, Constand called the verdict less important than the growing support for sexual assault survivors inspired by the #MeToo movement.

"The outcome of the trial seemed strangely unimportant. It was as if the world had again shifted in some much more significant way," Constand wrote in the book, The Moment.