Bill Cosby Lawyer Asks U.S. Supreme Court To Deny Revival Of Case

WASHINGTON, D.C. — Attorneys representing famed comedian and actor Bill Cosby have asked the United States Supreme Court to deny a bid by Pennsylvania prosecutors to revive the sexual assault case against him, saying the matter has already been decided by the state's highest court.

Jennifer Bonjean, a New York-based lawyer representing Cosby, argued in front of the U.S. Supreme Court on Monday that the Pennsylvania Supreme Court's overturning of Cosby's conviction should stand, according to news reports and legal briefs.

Pennsylvania Supreme Court justices overturned Cosby's sex assault conviction last summer based on the fact that the Montgomery County District Attorney's Office had previously agreed not to prosecute Cosby in exchange for his testimony in civil litigation involving victims.

Cosby, who lives in Cheltenham Township, Montgomery County, ended up serving three years in a Pennsylvania prison before he was freed following the Pennsylvania Supreme Court decision.

Late last year, the Montgomery County District Attorney's Office announced that it would be petitioning the U.S. Supreme Court to review the Pennsylvania Supreme Court's decision.

In a Nov. 29 news release, the DA's Office said it was filing what is called a writ of certiorari with the highest court in the land.

The prosecutors at the time said the question is this: "Where a prosecutor publicly announces that he will not file criminal charges based on lack of evidence, does the Due Process Clause of the Fourteenth Amendment transform that announcement into a binding promise that no charges will ever be filed, a promise that the target may rely on as if it were a grant of immunity?"

Former Montgomery County District Attorney Bruce Castor had his office issue a press release back in 2004 stating that Cosby would not be prosecuted in exchange for his offering testimony in a civil case involving a sex assault victim.

The Pennsylvania Supreme Court ultimately determined that that news release constituted a grant of immunity that Cosby would not face criminal prosecution.

In its 79-page decision last June, the Pennsylvania Supreme Court had written the following:

"When an unconditional charging decision is made publicly and with the intent to induce action and reliance by the defendant, and when the defendant does so to his detriment (and in some instances upon the advice of counsel), denying the defendant the benefit of that decision is an affront to fundamental fairness, particularly when it results in a criminal prosecution that was foregone for more than a decade. No mere changing of the guard strips that circumstance of its inequity."

Kevin Steele, Castor's successor in the DA's Office, nevertheless ended up charging Cosby — in his mid-80s and said to be in failing health — and the comedian was ultimately convicted during a jury trial in Montgomery County Common Pleas Court of aggravated indecent assault of Andrea Constand, a Temple University employee, inside his Cheltenham Township home.

In 2018, Cosby was given a sentence of three to 10 years in prison, and he ended up spending just under three years before the Pennsylvania Supreme Court overturned his conviction.

In her brief in opposition to the Montgomery County District Attorney's writ of certiorari to the U.S. Supreme Court, which was dated Monday, Bonjean, Cosby's appellate lawyer, wrote that, "As the decision reflects, the Cosby court held that when a prosecutor makes an unconditional promise of non-prosecution and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced.

"Contrary to the Commonwealth's contention, the Pennsylvania Supreme Court relied on a robust, factually unique record when it concluded that the district attorney made an 'unconditional promise' not to prosecute Cosby for the purpose of inducing him to forfeit his Fifth Amendment right in an anticipated civil litigation," Bonjean wrote.

Bonjean wrote that prosecutors failed to identify a "single case" from any court that conflicts with the state Supreme Court's decision, and that their petition to the high court offers "no compelling reason for this Court to disrupt the state supreme court's decision which is legally uncontroversial and based on a 'rare, if not entirely unique' set of circumstances unlikely to occur again in the Commonwealth of Pennsylvania or elsewhere."