It's In the Pudding

It’s In The Pudding

 

 Bill Cosby was “pudding” things where they don’t belong He was arrested for sexual assault, but can he be prosecuted? After years of allegations from various women that they were drugged and sexually assaulted by Bill Cosby, the first criminal prosecution of the popular comedian and TV dad may be about to take place.  He was charged with sexually assaulting Andrea Constand in 2004 at his home in suburban Philadelphia. 

 

The new Montgomery County, PA District Attorney (DA), Kevin Steele, filed the criminal charges shortly before the statute of limitations was set to expire. The statute of limitations for prosecuting a sexual assault case in Pennsylvania is 12 years from the time the act was committed. If charges are not field by that time, they are forever barred. Apparently part of Steele’s election campaign was a promise to prosecute Cosby. 

 

 

 Politics Rears Its Ugly Head.

 

Cosby’s legal team has filed a motion to dismiss the case.  According to a January 20, 2016 article on usatoday.com, former Montgomery County DA Bruce Castor claims to have made a deal with Cosby back in 2005 not to prosecute him for sexually assaulting Constand, and is expected to testify for Cosby that he made the deal to get Cosby to testify in Constand’s 2005 civil suit (which was eventually settled.) against the comedian.  It will be interesting to see how the court rules as to whether or not an immunity deal for Cosby is found to exist.

 

 

The court must determine was there an actual agreement?  Was it valid? If so can the State can now prosecute Cosby? If so, can they use the deposition testimony? A hearing has been scheduled tentatively for February 2, 2016.  I’m sure this will be heavily publicized

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I Never Agreed Not To Prosecute

 

It was that namby-pamby, soft on crime, star crossed previous DA. Current DA Steele countered that Castor granted Cosby immunity in a press release, which is not the same as a court-approved immunity agreement.  Steele also pointed out that during that press release, Castor said he could reconsider the decision not to prosecute if the need arose.   But, he didn’t, did he?

 

 

 

But, Isn’t A Deal A Deal?

 

The law says that if there are any disputes about the terms or validity of an agreement between the prosecution and a defendant, a court must use relevant contract law principles to decide whether the agreement is enforceable on either the prosecution or the defendant.

 

 

The Supreme Court of the United States has said that if a new prosecutor takes over a case in which a previous prosecutor on the same case had come to an agreement with a defendant, the new prosecutor has to abide by the terms of the original agreement. (Santobello v. New York, 404 U.S. 257 (1971).

 

If Cosby did have a valid agreement (I think he did.) with the District Attorney in 2005 to provide deposition testimony in the Constand civil case in exchange for non-prosecution, the current District Attorney could (and should!) be forced to comply with the terms of the agreement and would not be able to prosecute Cosby

 

What New Evidence?

 

 

When a federal judge made Cosby’s deposition testimony from Constand’s 2005 civil suit public in July 2015, Steele said that there was new evidence that prompted a new investigation.  Among other revelations, Cosby stated in his deposition that he obtained Quaaludes in the ‘70s to help him seduce women.  However, he claimed the blue pills he gave to Constand were Benadryl.  (In those days, there was no Viagra) I’m surprised he didn’t use Roofies, (Rohypnol)the date rape drug. But this is old evidence.

 

A similar article from January 15, 2016 on nydailynews.com stated that in 2015 Castor emailed then DA Risa Vetri Ferman details of his 2005 agreement with Cosby’s lawyers.  This deal reportedly stated that if Cosby testified in Constand’s civil case his testimony would never be used against him in a criminal case.  So I guess the DA was OK with it then?

 

 

Even The DAs Are Playing He Said, She Said

 

The current DA, Steele. claims that the specific legal method for granting immunity was not adhered to in 2005. They didn’t do it right.so it doesn’t affect us!  Really? Cosby’s defense team disagrees, claiming that the charges pursued by Steele violate an “’express agreement made by the Montgomery County District Attorney in 2005, in which the Commonwealth agreed that Mr. Cosby would never be prosecuted with respect to the allegations of sexual assault made by complainant Andrea Constand.’”

 

In 2005 Cosby participated in an oral agreement with Castor. There was never a written document, but rather discussions between Castor, Cosby, and Cosby’s attorney. But didn’t they all have an understating of the parameters? Castor sat down with Cosby’s former attorney (who is now deceased) and gave his word that he would not prosecute Cosby. This seems pretty clear to me. The “agreement” was also announced in a press statement made by Castor

 

There is something in Nevada called a civil compromise. If the “victim” is made whole and agrees. Then the state will not prosecute. I don’t believe it is Cosby’s fault that the former DA didn’t do everything right. Why should the current DA be able to renege on the agreement? I’m sure if Cosby didn’t follow through with his settlement., there would be hell to pay.

 

 

Unclean Hands, Mr Steele. Why Don’t You Wash Them In The Schuylkill River?

 

There is a legal concept called “Unclean Hands” Under the unclean hands doctrine, one party would argue that the opposing party is not entitled to relief because they have committed some sort of wrongdoing or are themselves liable for an offense. In other words, they cannot obtain a remedy because their hands are “unclean”.  It seems like the current DA’s hands are dirty! Oops my office screwed up so you don’t get the benefit of your bargain, Mr. Cosby! My bad!

 

To further complicate the issue of whether or not there was an agreement between Castor and Cosby, an article posted on philly.com on January 20, 2016 and updated January 21, 2016, reports that Castor’s successor as DA, Risa Vetri Ferman, told Castor that she had no documentation supporting any deal with Cosby.  She also could not remember any agreement, despite being Castor’s top assistant in 2005.  She also had contact with Constand’s lawyers during that time.

 

Email, What Email?

 

According to CNN in 2015 Castor sent an email to his successor Ferman, who is now a judge of the Court of Common Pleas in Montgomery County. It details an apparent verbal agreement the prosecutor had a decade earlier with Cosby's attorneys for Cosby to testify in a civil sexual assault case brought against him in 2005.

 

 In the email, Castor writes that his intent in making the deal was to create an atmosphere in which Cosby accuser Andrea Constand would have the best chance of prevailing in her civil suit against the him by removing the prospect of Cosby invoking his 5th Amendment right.” He stated “With the agreement of the defense law and Andrea’ lawyer, I intentionally and specifically bound the Commonwealth (PA) that there would be no state prosecution of Cosby …”

 

Castor said "I can see no possibility that Cosby's deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression. I cannot believe any state court judge would allow that deposition into evidence. .... Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally." I guess Ms. Ferman forgot about that email.

 

Castor’s email is significant because it supports the fact that an agreement was made for absolute immunity from all prosecution; rather than immunity from prosecution only stemming from the use of statements made during the deposition

 

 

 

Is Cosby Immune From Prosecutionitis? Maybe?

 

Pennsylvania does have a statute regarding Immunity of Witnesses.  Title 42, Chapter 59, Section 5947 of the PA Consolidated Statutes provides for immunity orders for witnesses in certain situations upon request of the DA.  The statute says that the judge shall grant the immunity order when the DA feels the witness’ testimony is necessary to the public interest and the witness has refused to testify, or is likely to refuse, based on his privilege against self-incrimination.   There was no judge that granted any immunity in 2005. But is that Cosby’s fault?

 

This statute also states that testimony or information compelled under an immunity order, or any information directly or indirectly derived therefrom, may not be used against a witness in any criminal case, except in cases of perjury, false swearing, or contempt for not complying with the immunity order.

 

The DA Whines But Judge We REALLY Want To Use His Deposition.

 

 We know this will prejudice him in the eyes of the jury. Judge you know the DA is supposed to win. It is the American way. The testimony may also be used as evidence when otherwise admissible, in proceedings where the witness is not a criminal defendant.  The line about information directly or indirectly derived from such testimony could prove beneficial to Cosby if an agreement is found to actually exist. I think it clearly does.

 

Here in Nevada, NRS 178.572 provides that, on motion of the State, the court may order a material witness to be released from liability to be prosecuted or punished based on testimony or evidence the witness may be required to produce, in any investigation before a grand jury, or any preliminary examination or trial in any court of record.  So, if immunity is granted, the witness may NOT use his or her Fifth Amendment privilege

 

All Immunity Is Not The Same

 

NRS 178.574 states that any such immunity order shall forever bar the witness from prosecution for any offense shown in whole or in part by his testimony or other evidence, except for perjury committed in the giving of such testimony.

 

The federal immunity statute is similar.  18 U.S.C. § 6002 states that when a witness is ordered to testify after refusing to do so on the basis of his privilege against self-incrimination, the testimony or information compelled by the order, as well as any information directly or indirectly derived therefrom, may not be used against the witness in any criminal case.

 

 This is a broader form of immunity that is usually agreed upon when doing a proffer. In the vast majority of proffer agreements, the prosecutor can make derivative use of any information provided. They can to follow up leads and discover new, incriminating information. Exceptions are made for perjury, giving false statement, or failing to comply with the order to testify.

 

 

Immunity? Why Not.

 

For those like Cosby seeking to use an immunity defense, the Rules of Evidence may also provide some comfort.  Federal Rule of Evidence 410 prohibits the use of the almost all of a Defendant’s immunized statements against him in both civil and criminal cases. However, similar to the federal immunity statute, this rule also makes exceptions in certain cases, such as where defendant has committed perjury or issued false statements under oath, on the record, with counsel present.

 

 

 

Make Me A Proffer I Can’t Refuse!

 

Better Consult a Lawyer! One of the trickier aspects of immunity is the proffer, or “queen for a day” agreement.  These are agreements between a prosecutor and a criminal suspect which allow the suspect to provide the prosecutor with information. Supposedly the Prosecution can’t use it. Not so fast moose breath!

 

What’s the catch with proffers?  They don’t allow the prosecution to use information obtained in the proffer session against the person that provided it.  This is a stay out of Jail free card! Right? Wrong! The information can be used to find new evidence, and that new evidence can be used against you, Mr. Profferer. In other words, there’s no guarantee that you can’t be prosecuted based on the testimony you provide during the proffer session, because that testimony can be used to find additional evidence that evidence can be used against you. It doesn’t seem fair, does it?

 

 Making a proffer to try and obtain immunity, or even leniency, can be a tricky proposition.  You should really consider consulting an experienced and knowledgeable defense attorney to help you decide whether or not to engage in a proffer agreement There are pitfalls for the unwary

 

 

Should You Accept a Proffer?

 

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The alternative is to invoke Your 5th Amendment Right Against Self-Incrimination Which is better? It depends on the case. If the Prosecution’s case is strong, it may behoove you to cooperate. If it is not, you may give them the evidence they need to convict you.

 

Defense lawyers are watching with great interest to see how the issue of whether or not there was an immunity agreement in place between Cosby and the former DA plays out.  Is it a full-fledged immunity agreement, or will it be treated more like a proffer, which could mean the new prosecutor can go after Cosby based on the “alleged” new evidence that came out when Cosby’s deposition from the 2005 civil suit became public last summer. If the testimony was always there, how could it be new evidence?

 

 I don’t know what happened between Bill Cosby and all of those women. It sure seems like where there is smoke there is fire. I’m certainly not condoning sexually assaulting or drugging women. But, a deal is a deal! Constand’s civil case against Cosby was settled approximately 10 years ago. Then DA Castor made a tactical decision not to prosecute Cosby in return for Bill testifying in a deposition to assist Constand’s civil case. Maybe he felt the Ms Constand would get more justice from a financial settlement Money talks!

 

If you’re under investigation for suspected criminal activity, or have already been charged, you probably don’t care much about what’s happening across the country in the Commonwealth of Pennsylvania with Bill Cosby.  You’ve got your own problems!

 

 Here in Nevada, NRS 171.085 provides for a four-year statute of limitations to charge a suspect with sexual assault. But, under NRS 171.083, if a police report is filed by the victim or a person authorized to act on the victim's behalf within the four-year period, then a prosecution for that incident may take place at any time thereafter. If so there is no statute of limitations just like murder.

 

Don’t go it alone! If you find yourself in in this type of situation in which you are between a rock and a hard place, you’re unsure whether to “plead the 5th” or meet with the prosecutors or any member of law enforcement, you need help! One wrong move could affect you for the rest of your life!  Make sure you protect yourself!

 

Contact Us

 

For more information regarding Nevada laws, or if you feel your rights have been violated, please call Mace Yampolsky & Associates.  Call us at (702) 385-9777.  We are available 24/7 for emergencies.  

 

If you need help, CALL NOW before it is too late.  We can help!