Mimesis Law
27 May 2017

Bill Cosby’s “Special Treatment”

Jan. 22, 2016 (Mimesis Law) — Some articles have popped up recently claiming that Bill Cosby is demanding “special treatment” in his criminal case. No doubt a tactic used to inflame those out for his blood and feed public sentiment about the famous, rich, and powerful being treated differently by the justice system, it probably generates a lot of clicks. Whether it’s accurate is a bit more complicated.

A New York Times article provides the quote from the prosecution pleading that gave rise to the claim he wants special treatment:

“Defendant seeks special treatment by having this court adjudicate his pretrial motions before a magisterial district judge has even held his case for court,” the filing said.

Basically, the prosecutor thinks a request for a judge to consider a motion earlier than he thinks is allowed is seeking special treatment. A USA Today article explains how the prosecutor thinks the process should go:

Steele also argued Wednesday that the hearing on the motion to dismiss is premature. He said the rules in Pennsylvania call for such motions to be filed only after a preliminary hearing. O’Neill scheduled the hearing in place of the preliminary hearing that had been set for the same day before a magistrate.

If he’s right, a defendant asking the court to address an issue early on isn’t exactly a demand for special treatment. Who wouldn’t want to nip something in the bud, even if the rules prevent it, right? If the case really needs to be dismissed, then Cosby’s is more of a demand for fair treatment as soon as possible. Plus, given the circumstances, Cosby’s request seems both reasonable and urgent. After all, he was apparently promised by the prosecutor’s predecessor that he wouldn’t be charged at all if he testified in a civil deposition:

Mr. Cosby’s lawyers had asked the court last week to dismiss the sexual assault charges because, they said the former district attorney, Bruce Castor, had agreed in 2005 not to prosecute the entertainer.

Mr. Castor had decided there was insufficient evidence to charge Mr. Cosby, who had been accused by Andrea Constand, a Temple University staff member, of drugging and molesting her at his Pennsylvania home in 2004. Mr. Castor had hoped, according to an email he wrote that was filed as an exhibit Wednesday, that a non-prosecution agreement would convince Mr. Cosby to testify freely under oath during a subsequent civil case brought by Ms. Constand, and possibly increase her chances of prevailing.

The prosecutor takes issue with that, of course:

A Pennsylvania prosecutor on Wednesday hit back at efforts by lawyers for Bill Cosby to have the criminal charges against Mr. Cosby dismissed, describing their claim that a former district attorney made a promise not to prosecute the entertainer a decade ago as meritless.

“Only a judge may issue an order granting immunity in Pennsylvania,” the prosecutor, Montgomery County District Attorney Kevin R. Steele, said in court papers.

If what Cosby is claiming is true, and if the prosecutor is right and Cosby’s argument is meritless nonetheless, then it’s a horribly unfair situation.

Cosby had a tough decision back in 2005. He could’ve refused to answer questions in a civil deposition and been charged criminally anyway. He might have been found in contempt for his refusal to cooperate as well. Instead, it seems he chose instead to participate in depositions during which he made incriminating statements after being promised by a prosecutor that he would not be charged criminally if he did so.

Things start to look even worse in light of some other claims Cosby is making about the prosecutor:

Mr. Steele defeated Mr. Castor in the election for district attorney last fall, after a heated campaign in which Mr. Steele attacked the earlier decision not to prosecute Mr. Cosby.

Mr. Cosby’s lawyers now charge that Mr. Steele is bringing charges, not on the merits, but because of his campaign promise. They have asked that he be disqualified.

While the idea of authorities being able to lie and make promises to encourage certain behavior and then break them after getting what they want is nothing new (example: every police interrogation ever), it’s hard to deny that Cosby got pretty screwed if that is indeed what happened. There’s just something fundamentally wrong with the idea that a district attorney could promise Cosby immunity, resulting in Cosby saying things that make immunity that much more important, only for another district attorney to beat him in an election on an “I’ll prosecute Cosby” platform and then renege on his predecessor’s promise.

Of course, all of this presumes that Cosby was in fact promised immunity. Sure, the former district attorney might say he did, but wouldn’t he have motive to sabotage the case of the guy who beat him? On top of that, it’s pretty implausible that Cosby’s lawyers back then would’ve missed the fact that the district attorney was making a promise he couldn’t keep. If they did, hopefully they have malpractice insurance.

Regardless, Cosby is stuck in a tight spot. Even if his claims aren’t true, the fact they might be is compelling enough given their nature that addressing them immediately is certainly not an unreasonable request. Of course, the rules may prevent that. The rules may prevent anything from happening at all to Cosby’s benefit.

Cosby may have been duped into testifying himself into a conviction, and he may be charged purely for the political gain of the new head of the office that duped him, yet he may have to wait until after a preliminary hearing involving evidence that exists because of the prosecuting agency’s misrepresentations before finally arguing and losing a motion to dismiss because the misrepresentations were in fact misrepresentations. Basically, he may have the same experience most defendants do, which is to say a largely unfair one.

So the headlines might be a little misleading, but not really. Cosby isn’t really asking for special treatment. He just wants a judge to hear an important motion before more damage is done, rules notwithstanding. He just wants the court to fix a situation that may genuinely be unfair, the offending district attorney’s potential lack of authority notwithstanding.

In short, what Cosby wants is a fair shake in a system that attempts to minimize the damage done to him in the event the cases against him is wrongful. Unfortunately, considering how the system is designed, what he’s requesting probably would constitute special treatment. That it’s special treatment we all probably deserve doesn’t really change that fact.

Main image via Flickr/Ted Eytan

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