Note From Asha: The Cosby Case and Jan. 6th

Dear Listener,

Last week, the Pennsylvania Supreme Court handed down a decision that shocked many — it threw out the conviction of Bill Cosby, who was found guilty in 2018 of three counts of aggravated indecent assault against his victim, Andrea Constand. The decision was a punch in the gut for all victims of sexual assault, both in Cosby’s case and others. But the principle that the Pennsylvania Supreme Court was vindicating — which was about due process, not the weight of the evidence demonstrating Cosby’s guilt — has implications that go even further: The case serves as both a warning and a reminder for Congress not to compromise future potential criminal prosecutions as it investigates the events of January 6.

In its ruling, the Pennsylvania court was primarily concerned with whether prosecutors had improperly used Cosby’s self-incriminating statements in order to prove the criminal case against him. This is because in 2005, then-District Attorney of Montgomery County, Bruce Castor, had made a public decision not to prosecute Cosby after investigating Constand’s allegations of sexual assault against him. Castor believed that he did not have enough evidence to prove the case against Cosby in criminal court. However, Castor felt that by publicly stating that he would not be prosecuting Cosby, he would help Constand’s case in civil court, which has a lower burden of proof. Specifically, without any threat of prosecution, Cosby would be unable to invoke his Fifth Amendment right against self-incrimination to avoid answering questions in any civil depositions — if there is no realistic way Cosby could be prosecuted for his statements, the Fifth Amendment protections would no longer be applicable. Cosby in fact went on to answer questions in his depositions that were self-incriminating — and a decade later, Castor’s successor in the D.A.’s office used those statements to prove the criminal case against him. Because Cosby had relied on Castor’s assurances of non-prosecution in making these statements, the Court reasoned, using them as evidence to prove a criminal case against him violated due process.

Reasonable lawyers can disagree with the Court’s approach and remedy, but few would argue that the justices were wrong to look carefully at the issue, and place a feather on the scale in favor of the defendant in its analysis. The Fifth Amendment right against self-incrimination is the sine qua non of our criminal justice system, which recognizes the immense disparity between the power of the state and the individual when it comes to criminal accusations. In addition to protecting a defendant’s right not to testify against himself, our judicial system tries to balance this power differential in many ways, like placing the burden of proving guilt beyond a reasonable doubt on the government, or guaranteeing a defendant the right to counsel. The importance of the Fifth Amendment was forcefully articulated by the U.S. Court of Appeals for the D.C. Circuit in 1990, which stated that compelling an individual to incriminate himself “is contrary to the principles of free government…It may suit the purposes of despotic power; but cannot abide the pure atmosphere of political liberty and personal freedom.”

That case involved another (in)famous defendant — it was Oliver L. North, the primary witness in the Iran-Contra scandal under the Reagan administration. During Iran-Contra, Congress created the Tower Commission, charged with investigating whether North, along with the CIA and National Security Council, had circumvented Congress’s prohibition on funding the Contras in Nicaragua by funneling money they obtained from the sale of arms to Iran in exchange for the release of hostages (spoiler alert: they had). Congress also appointed an Independent Counsel, Lawrence Walsh, to investigate any crimes committed by individuals involved in the scheme. The problem was that in order to compel his congressional testimony, Congress reached an immunity deal with North. Unfortunately, this deal tainted the Independent Counsel’s later prosecution of North. Walsh’s use (even indirectly) of North’s immunized testimony in his criminal case resulted in a federal appeals court vacating North’s convictions for falsifying and destroying documents, accepting an illegal gratuity, and aiding and abetting obstruction of Congress. (Of the thirteen other defendants prosecuted in Iran-Contra, National Security Adviser Robert McFarlane’s conviction was vacated for the same reason, and six other defendants were pardoned by Reagan’s successor, President George H.W. Bush, with the help of his attorney general, one William P. Barr.)

Both the Iran-Contra case and the Cosby case are reminders to Congress to tread carefully in its investigation into the events of January 6, especially in light of the ongoing criminal investigations being conducted by the Justice Department. In many ways, the Cosby scenario was foreseeable: He was prosecuted by the same office that had previously told him they wouldn’t. But Iran-Contra was trickier. Two different bodies were investigating the same event, and they had different goals and interests in mind. For Independent Counsel Walsh, the focus was on conducting a thorough investigation in order to obtain all relevant evidence to prove the case beyond a reasonable doubt — a process that took time, and remained out of the public eye as it happened. By contrast, Congress was interested in public transparency and immediate political accountability. As Walsh noted at the time, these two goals can be in conflict; despite Walsh urging Congress not to grant immunity to North and others until the criminal prosecutions were complete, Congress believed that getting the facts out in public was paramount.

One of the advantages of both our justice system and congressional checks and balances is that they offer several avenues for accountability. However, they can also work at cross-purposes. Sometimes, a short-term advantage — like a victory in civil court, or public testimony in a congressional hearing — can seem worthwhile, especially if long-term justice seems elusive. But as the Cosby case demonstrates, this can be a double-edged sword. Congress, and the public, should consider this trade-off when the investigation into January 6 gets underway.

Stay Informed,

Asha