Prosecutors petitioned the U.S. Supreme Court Monday to review the decision that overturned Bill Cosby’s conviction for sexual assault, claiming that the former comedian and actor was not granted lifetime immunity, the Associated Press reported. Cosby was released after serving nearly three years in prison in June after the Pennsylvania Supreme Court ruled that an earlier pledge that he wouldn’t face charges was binding for the prosecutor who brought his case forward.
Cosby was relying on that promise that he would never face charges when he testified in 2006 amid a civil suit brought by one of his accusers, his lawyers have long argued. The damaging information he revealed in that testimony was later used against him in two criminal trials, according to the AP.
The promise to forgo prosecuting Cosby is not well-documented. The only evidence in writing of the pledge is a press release from 2005 from then-prosecutor Bruce Castor, who said that he did not have sufficient evidence to arrest Cosby, the AP reported.
Castor added that he “will reconsider this decision should the need arise,” though his meaning has been debated for years.
Montgomery County District Attorney Kevin Steele wrote in the petition to SCOTUS that the “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,” Steele wrote.
Successors of Castor who compiled new evidence and arrested Cosby in 2015 say that he was not subject to a lifetime immunity agreement. They have also voiced doubt regarding whether Cosby ever made the deal, according to the AP.
For more reporting from the Associated Press, see below.
Prosecutors 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.
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.
However, defense 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.
Steele’s bid to revive the case is a long shot. The U.S. Supreme Court accepts fewer than 1 percent 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 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 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 defense.
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.”