Legal Experts: Weigh in on the Cosby Criminal Case

[aldiboronti]

So does this mean Cosby’s answers in the civil case can now be used to convict him in the current criminal case or is that an entirely separate matter?

[Bricker]

@aldiboronti

So does this mean Cosby’s answers in the civil case can now be used to convict him in the current criminal case or is that an entirely separate matter?

The two issues are related in the sense that if no agreement existed at all, then Cosby’s answers in the deposition are hearsay. But there’s an exception to the hearsay rule in which admissions against one’s own interest are nonetheless admissible, and that’s what these answers are.

If an agreement existed not to prosecute Cosby, then the matter is moot: no trial, so no question of whether the evidence is admissible at trial.

Finally, I speculated above that the judge might find that an agreement existed that exceeded the prosecutor’s powers – he might find that the state could prosecute Cosby, but not use the deposition testimony. That didn’t happen.

I imagine Cosby’s team will preserve this issue for appeal.

[Richard_Parker]

@Bricker

But there’s an exception to the hearsay rule in which admissions against one’s own interest are nonetheless admissible, and that’s what these answers are.

I don’t think they even have to show they are statements against interest, since Cosby is a party and since the statements were sworn, both of which make the statements non-hearsay (or, actually, hearsay exceptions in PA).

[Bricker]

@Richard_Parker

I don’t think they even have to show they are statements against interest, since Cosby is a party and since the statements were sworn, both of which make the statements non-hearsay (or, actually, hearsay exceptions in PA).

True – not hearsay under the FRE.

[Really_Not_All_That_Bright]

I take no position on whether there was a deal or not. I wasn’t there and the evidence seems to be at least slightly conflicting.

However, if I were representing Cosby and I had not confirmed any such deal in writing I would be expecting to receive a malpractice complaint right about now.

Here’s a question for you, Bricker: can ineffective assistance of counsel claims be raised based on events that occurred outside the scope of the underlying criminal proceeding (such as a civil case based on similar or the same facts, as in this case)?

[Tom_Tildrum]

@Really_Not_All_That_Bright

However, if I were representing Cosby and I had not confirmed any such deal in writing I would be expecting to receive a malpractice complaint right about now.

If memory serves, Cosby’s criminal counsel from that time is now dead.

This is presumably one reason why the Cosby team offered no evidence of its own of any agreement.

[Really_Not_All_That_Bright]

Presumably that guy had an inventory attorney, or whatever they’re called in Pennsylvania.

[Bricker]

@Really_Not_All_That_Bright

Here’s a question for you, Bricker: can ineffective assistance of counsel claims be raised based on events that occurred outside the scope of the underlying criminal proceeding (such as a civil case based on similar or the same facts, as in this case)?

That’s a damn good question.

I don’t think so.

In a line of constitutional cases in this Court stemming back to the Court’s landmark opinion in Powell v. Alabama, 287 U. S. 45, it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.

I don’t see how there can be a Strickland violation when the right to counsel never attached.

[Richard_Parker]

A minority of courts have found that the right to counsel attaches pre-indictment at some critical stages, including plea bargaining. But the majority of courts to have considered the issue have rejected such analysis.

[Fotheringay-Phipps]

@Tom_Tildrum

If memory serves, Cosby’s criminal counsel from that time is now dead.

This is presumably one reason why the Cosby team offered no evidence of its own of any agreement.

I understood RNATB’s question to be slightly different.

Cosby couldn’t claim ineffective counsel regarding his criminal case attorney even if he was alive, because to the extent that you don’t believe there was ever a valid immunity deal, then there was nothing to get in writing (& no reason to believe any such offer was available). So any such claim would be rejected for the same reason the immunity claim itself was rejected.

ISTM that the only claim for ineffective counsel was that he was improperly represented in his civil case, in that the lawyer should not have allowed Cosby to freely testify based on a mistaken notion that he had immunity (whether the mistake was in relying on an oral agreement or on a non-existant one). The lawyer who allowed that is still alive and testified yesterday.

But that was a case of ineffective counsel in the civil case coming back to hurt him in the criminal case. Which is what RNATB seemed to be asking. The criminal attorney being dead has nothing to do with that issue.

[Tom_Tildrum]

@Really_Not_All_That_Bright

Presumably that guy had an inventory attorney, or whatever they’re called in Pennsylvania.

I guess I was responding to your suggestion that the guy should be expecting to receive a malpractice complaint. He is beyond the reach of the disciplinary committee.

More broadly, too, that’s why Cosby’s team didn’t produce testimony this week from his prior lawyer. I imagine you’re right that someone should have the guy’s written records, though, and the fact that they didn’t have any memos or notes from the prior lawyer’s files just further suggests that there was never any agreement.

[Damuri_Ajashi]

@Typo_Negative

Why was he offered immunity in civil case?

He was given immunity in the criminal case so that he couldn’t take the 5th in the civil case. The standards of proof are lower in civil case and the prosecution might have felt that they did not have enough proof to convict on a criminal case but that the plaintiff might have enough proof to prevail in a civil case if Cosby could be compelled to testify.

[Damuri_Ajashi]

@Jimmy_Chitwood

“Sure, I’ll sign that agreement. Where is it?”

First, tell me what you have so I know if you have anything worth the immunity?

And this wasn’t an immunity deal it wasn’t “give me evidence against John Gotti and I’ll give you immunity on the murder and extortion” This was “You will not be prosecuted so you cannot take the 5th in the civil case”

[Damuri_Ajashi]

@Bricker

…COCHRAN, J., concurring: (at 70 SW 3d 856):

…

LOL, nice.

[Damuri_Ajashi]

@Tom_Tildrum

As a threshold matter, I don’t think immunity requires an agreement of any kind, because a witness can be immunized against his will and then compelled to testify, if he keeps resisting. The grant of immunity presumably should be documented, however.

But immunity is something that a prosecutor offers in order to secure a witness’s testimony against some other person in some criminal proceeding. That’s the only reason why a prosecutor would need to do so. Neither Castor nor Cosby’s defense team is saying that Castor gave Cosby immunity to obtain his testimony. Rather, the claim seems to be that Castor intended for his decision not to prosecute to constitute immunity – for no reason. Castor has nothing to do with the later civil suit. Rather, the fact that Cosby later testified in the separate civil case is only supposed to be evidence that he understood Castor’s decision not to prosecute to constitute immunity, because otherwise he would not have testified.

I am not a criminal attorney, but this all sounds like nonsense. Castor could have entered into a binding agreement with Cosby, but there is simply no reason to believe he did so, because he would have gotten nothing in return. Castor himself denies doing so. To all appearances, all Castor did was close his file. Jeopardy has not attached, and any subsequent prosecutor can come along, reopen the case, and file charges over the exact same conduct based on the exact same evidence.

Castor argues that his mere decision not to charge Cosby, in and of itself, had binding effect, but no sensible court is going to buy into that contention, because it would cripple the criminal justice system. Prosecutors make decisions not to charge all the time; indeed, the vast majority of what they investigate does not get charged. There can be all sorts of reasons why not: the evidence is weak, a key witness is absent, the harm appears minimal, or the staff is overwhelmed with bigger cases. But these cases always remain open to being revisited if the evidence improves (say, from a confession at a later civil deposition), the harm worsens, or the caseload lightens. Indeed, some network made a whole TV series out of cold cases. A court ruling that a mere decision not to prosecute forbids a prosecutor from ever reopening that file means that they not only have only one chance to try a person, they also only have one chance even just to investigate, and that’s too damaging to the whole process.

AFAICT, it was more than mere prosecutorial discretion not to prosecute AT THAT TIME. It was a prosecutorial commitment not to prosecute EVER.

I don’t think Cosby’s supposed reliance upon his belief in immunity when he testified in the civil suit will amount to much, since it doesn’t seem at all reasonable to rely on a simple decision not to prosecute. Further, his current counsel has produced not only no evidence of an immunity agreement, but no direct evidence of Cosby’s belief in immunity back then. They seem to have found no correspondence with the civil plaintiff’s counsel about Cosby’s intentions as to his Fifth Amendment rights, and apparently no record in Cosby’s civil attorney’s files of any Fifth Amendment analysis or of him being counseled about immunity.

Not knowing anything about this judge, I may well be proven wrong, but I don’t see how Cosby has a leg to stand on here. I think the deposition testimony comes in.

The law generally does not like to play gotcha games with criminal defendants.

[Damuri_Ajashi]

@Bricker

I don’t quite agree.

According to Castor, he sought to induce Cosby to testify in Constand’s civil litigation, and because he had (in his view) an unwinnable criminal case, the best way to achieve some measure of justice for Constand was in the civil arena. By granting him transactional immunity by agreeing to not prosecute, denied Cosby the option to assert his Fifth Amendment protection against self-incrimination in response to a civil deposition.

Now, certainly the judge may find that isn’t exactly what happened. That’s a question of fact.

But if that IS what happened, then Cosby’s deposition testimony relied upon the existence of that grant of transactional immunity.

Now, I think the court, absent a written agreement, might be able to find that the grant was actually use immunity, since use immunity adequately confers Fifth Amendment protections. In other words, there are two issues in play: can he be prosecuted at all, and if he can, can the deposition testimony (and fruits therefrom) be used against him?

The claim of use immunity seems strong to me. The claim that transactional immunity exists seems weaker, although it turns on a finding of fact by the judge.

And, to echo the dissent in the case I mentioned above: *This case demonstrates the wisdom of a rule that all immunity agreements must be in writing, signed by the defendant, his counsel, the prosecutor, and the trial judge. *

I tend to agree with you. I’m not a trial lawyer but this seems like a case where the deposition and anything that comes out of the previous trial cannot be admitted but the crime itself might still be the subject of prosecution.

[Damuri_Ajashi]

@Fotheringay-Phipps

The sense I’m getting, though, is that Castor never specifically said “I hereby grant you immunity” or anything to that effect. But rather, that he believed that under the law his decision to not prosecute was binding on “the sovereign” forever after, and thus had the same practical impact. And possibly the Cosby lawyers also made that assumption. And based on that, Cosby felt free to testify.

But that’s a legal question. Suppose the current judge feels that Castor was incorrect as a matter of law, and that both he and Cosby operated under an incorrect assumption that as a result of his decision Cosby was free to testify without fear of prosecution (or at least that his testimony couldn’t be used against him). Where does that leave Cosby? Does he get to say “I only testified because I was given to understand by the prosecutor that his decision was binding and permanent”, or is that his tough luck?

Who has the burden of proof as to the question of fact, and what’s the standard of proof?

If there was a meeting of the minds, I don’t know how much it matters what assumption were made as long as there was no deceit or fraud involved.

[Saint_Cad]

The impression I get is being an idiot does not equal immunity whether defendant, defense attorney or prosecutor. I have been involved in a couple of civil cases and even I know if you don’t have a piece of paper signed by a judge you don’t have anything.

[Really_Not_All_That_Bright]

@Damuri_Ajashi

I tend to agree with you. I’m not a trial lawyer but this seems like a case where the deposition and anything that comes out of the previous trial cannot be admitted but the crime itself might still be the subject of prosecution.

Why can’t they be admitted? They’re party admissions. Plus, the point of the hearsay rule is to keep out testimony that the adverse party has no opportunity to cross-examine. The prosecution is hardly going to argue that the testimony is inadmissible on those grounds.

[Damuri_Ajashi]

@Saint_Cad

The impression I get is being an idiot does not equal immunity whether defendant, defense attorney or prosecutor. I have been involved in a couple of civil cases and even I know if you don’t have a piece of paper signed by a judge you don’t have anything.

And yet there are cases where courts have held up immunity despite the absence of this signed piece of paper.

Do you think it would be fair if we used Cosby’s testimony used in the civil case? Ultimately, I think THAT is what a judge should be concerned with. If Cosby reasonably relied on immunity to testify in a civil case (based on the words and actions of the prosecutor), then, even if he didn’t actually have immunity, the testimony he gave in reliance of that reasonably held belief should not be held against him.