Bill Cosby’s Pennsylvania prosecutor may get another chance to put a previously convicted sex offender behind bars.
Montgomery County District Attorney Kevin Steele, who prosecuted Cosby and sentenced him in 2018, applied to the nation’s highest court on Monday to review the verdict that revoked Cosby’s conviction.
On June 30, the Pennsylvania Supreme Court overturned Cosby’s conviction on constitutional grounds, turning on whether he had received a fair trial and whether his due process rights had been violated. Reversal argues that the former prosecutor’s decisions prevented Cosby from being prosecuted years ago, when he molested a woman in his suburban Philadelphia home in 2004.
Although former District Attorney Bruce Castor told him and the public that those charges were off the table years ago, prosecutors used damaging evidence to show that Cosby was being turned into a civil case to convict him of criminal offenses.
Cosby, 84, was released from the Pennsylvania state prison within hours of a state court ruling.
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Shocked by that setback, Steele suggested that he could apply to the US Supreme Court; Monday was the deadline.
In a statement, Steele said the question presented to the High Court in a certiorari writ involves the 14th Amendment to the US Constitution.
The relevant section of the amendment states in part: “[N]Or that any State shall deprive any person of life, liberty or property without due process of law. “
“The question presented to the court is: ‘If the prosecutor publicly declares that criminal charges will not be filed on the basis of a lack of evidence, the Fourteenth Amendment due process clause will turn that publication into a surety that no charges are filed. “Steele said in a statement.
In his brief, Steele argues that sheriffs make public statements all the time. Under Cosby’s reasoning, he says that in those cases the accused could be “permanently exempt” even if new evidence emerges.
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He urged the court to review Cosby’s decision to reconcile conflicts with state and federal law and to avoid potentially widespread jurisdictional confusion.
“Now, after the jurisdictional revolution by the state Supreme Court ruling in Cosby, there is a nationwide uncertainty as to whether a defendant can be granted permanent immunity from a public statement that refuses to file charges,” Steele argued in his brief.
The High Court does not have to accept the application. Under court rules, the court can take up to six weeks to act after an application is filed, responses are received, the case is circulated among the justices, and a case is scheduled for private Friday conferences of justices.
Andrew Wyatt, a spokesman for Cosby, said the petition was “pathetic” and a sign of prosecutor “fixation” on Cosby.
“The Montgomery County DA asks the US Supreme Court to throw the Constitution out the window to satisfy the Metoo crowd,” the statement said. “The DA’s request has no merit … (The High Court) generally does not interfere with the state high court decisions unless it conflicts with the decisions of other state high courts or our federal appeals.
“This is a pathetic last attempt that will not prevail. The DA fixation in Montgomery County with Mr. Cosby is troubling to say the least,” Wyatt concluded.
Cosby’s leading appellate attorney, Jennifer Bonjin, said Steele would file a response to his application. He rejects the argument that there are “major federal questions” in the dispute that the court must resolve, thus making the case “inadequate” for review by the US Supreme Court.
He said the case was “more than a press release.” Cosby and his lawyers believed the exemption was promised in 2006 when the deposit was sitting.
“Steel is trying to frame the question in a way that is far more controversial than it actually is,” he said. “This factual scenario has never happened and is unlikely to happen again. (The Supreme Court) has no interest in this case but we will see.”
Meanwhile, Bonejin said Steele should focus on protecting Montgomery County citizens “by arresting an 84-year-old blind who has already been sentenced to three years’ imprisonment instead of trying to save his failed political agenda.”
In his second trial (the first trial ended in a hung jury in 2017), Cosby was convicted in 2004 of drugging and molesting Temple University employee Andrea Constant at his suburban Philadelphia estate. Three years before its release.
Cosby, an acclaimed actor and comic once known as “America’s Dad,” became the focus of more than 60 allegations of sexual assault in the fall of 2014. In late 2015 Steele – who was newly armed – was charged in the Constant case. Unconfirmed evidence from Cosby’s defamatory deposit in Constant’s civil lawsuit – days before the 12-year statute of limitations expired.
When the conviction was reversed, Steele said in a statement to Cosby that “it is now open on the issue of procedural irrelevance to the facts of the crime.” Due to the decision, Cosby cannot be tried for a third time, he said.
“My hope is that this decision does not reduce the reporting of sexual harassment by victims,” Steele said in a statement. “We still believe that no one is above the law, including the rich, famous and powerful.”
Constant, through his lawyers in June, said the state Supreme Court reversal was “disappointing” because it could discourage victims from coming forward. He called the decision a “procedural technicality.”