Cosby Case May Change How Pennsylvania Handles Non-Prosecution Agreements

By Beth Brelje
Beth Brelje
Beth Brelje
Reporter
Beth Brelje is an investigative journalist covering Pennsylvania politics, courts, and the commonwealth’s most interesting and sometimes hidden news. Send her your story ideas:
July 2, 2021 Updated: July 2, 2021

In response to the Pennsylvania Supreme Court ruling that overturned Bill Cosby’s conviction, the Pennsylvania Senate Judiciary Committee plans to propose legislation requiring future non-prosecution agreements to be put in writing.

The 2005 agreement that freed Cosby was oral, although there was a written press release referring to the agreement. A non-prosecution agreement is an agreement not to prosecute in the future.

Comedian Bill Cosby was convicted in 2018 of aggravated indecent assault, after Temple University employee Andrea Constand accused him of drugging her in 2004 and molesting her.

Her name was made public in a civil lawsuit seeking a financial award for the incident. Ultimately it was settled for $3.38 million. During that suit, Cosby made self-incriminating statements that were later used against him in a criminal trial; a trial he was not expecting when he made those statements, based on the verbal non-prosecution agreement.

Montgomery County’s then-District Attorney Bruce Castor said he decided a criminal case against Cosby could not be won, so he made a public statement through a press release that his office would not charge Cosby.

By removing the threat of a criminal prosecution, Cosby was no longer able, in a civil lawsuit, to invoke his Fifth Amendment privilege against self-incrimination for fear that his statements could later be used against him, Castor said in court testimony on the matter.

Castor left the district attorney’s office and his successor, District Attorney Risa Vetri Ferman, reopened the criminal investigation. Using incriminating statements from the civil trial, Cosby was convicted in 2018.

The Pennsylvania Supreme Court decided in a split decision to overturn Cosby’s conviction because his Fifth Amendment rights were violated.

In direct response to the opinion, state Sens. Lisa Baker, a Republican, and Steve Santarsiero, a Democrat, announced their intention to introduce legislation requiring all future non-prosecution agreements to be in writing to be enforceable.

“The recent Supreme Court decision in Commonwealth v. Cosby highlighted a need for clearer rules regarding the prosecution of crimes,” Santarsiero said. “Requiring that non-prosecution agreements must be in writing will protect the due process rights of the accused, while helping to ensure that victims have access to justice.”

Baker added that an oral agreement may be legal for the moment, but it won’t hold up in court.

“It is indefensible given what we have learned about the prevalence of sexual abuse and harassment throughout our society,” said Baker. “The system is slanted too heavily toward perpetrators, discouraging reporting and denying a true chance of justice for those with the fortitude to bring charges. This oral agreement turned into a horrible miscarriage of justice.”

The Senators serve as chairs of the Senate Judiciary Committee, which has jurisdiction in this matter.

Beth Brelje
Beth Brelje
Reporter
Beth Brelje is an investigative journalist covering Pennsylvania politics, courts, and the commonwealth’s most interesting and sometimes hidden news. Send her your story ideas: