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bill cosbys conviction overturned
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Why Bill Cosby’s Conviction was Overturned
Why Bill Cosby’s Conviction was Overturned 1400 788 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

Why Was Bill Cosby Set Free?

Most of you have probably seen by now that Bill Cosby’s conviction for the sexual assault of Andrea Constand was overturned by the Supreme Court of Pennsylvania. Many people are asking why Bill Cosby was set free. The court’s majority opinion alone spans 79 pages, but we’ve pared it down to its essence. The court’s decision is interesting not just because the court found that Cosby was wrongfully convicted, but also because the court held that Cosby could not even be retried, which is rare to see from an appellate court.

The Decision

The decision stems from a violation of the Fifth Amendment to the United States Constitution. The Fifth Amendment contains several rights, including one that prohibits the government (including the courts) from forcing you to make statements that may incriminate yourself. When District Attorney Bruce Castor first investigated Constand’s allegations of sexual assault against Cosby in 2005, he determined that he would probably not be able to prove that Cosby was guilty beyond a reasonable doubt as required to convict him. But Constand could still sue Cosby in civil court for the sexual assault, so the D.A. made a compromise: his office issued a press release stating that it would never prosecute Cosby in criminal court. Now, because there was no longer the threat of a criminal case against Cosby, he could not invoke the Fifth Amendment in his civil case. Cosby was then forced to testify in the civil case and made incriminating statements, including that he had given Quaaludes to other women he wanted to sleep with, and the case ultimately settled with Constand winning over $3 million.

Things changed when a new District Attorney took over. She felt that she was not bound by the first D.A.’s decision and decided to reopen the criminal case against Cosby in 2015. With the help of the incriminating statements Cosby had made in the civil case a decade earlier, Cosby was successfully convicted of aggravated indecent assault.

Which leads us to the state supreme court’s decision overturning the conviction. Because Cosby was compelled to testify and made incriminating statements in the civil case due to the prior D.A.’s announcement that his office would never prosecute Cosby, the D.A.’s office was bound to honor that promise so that Cosby’s Fifth Amendment rights weren’t thwarted.

Cosby’s Case a ‘Special One’

What is unusual is how the court decided to correct the violation. Ordinarily in a criminal case, if a defendant’s rights are violated in the trial court, then the appellate court will order a new trial and prohibit the prosecutor from using any evidence that came from the violation—here, that would mean preventing the D.A.’s office from using Cosby’s incriminating statements from the civil case. But the court concluded that this was a special case where simply excluding Cosby’s statements would not completely correct the violation. First, Cosby was not allowed to defend himself by invoking the Fifth Amendment in the civil case, and he was required to pay millions to Constand—having a new criminal trial without the incriminating statements would not fix that. Second, Cosby and the prior D.A. had essentially reached an agreement that Cosby would not be prosecuted at all if he testified in the civil case, so another trial would result in Cosby being forced to uphold his end of the bargain while not requiring the same thing from the prosecutor. Therefore, the court concluded that the only fair decision was to enforce the promise of the D.A.’s office to never prosecute Cosby, and the court ordered that he be set free.

Does this mean that the court found that Bill Cosby is innocent?

No, the ruling just means that Cosby must be released and could not be put on trial for the crime.

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Why Civil Rights Are Important
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The US Supreme Court heard oral arguments in Foster v. Chatman, a death penalty case where prosecutors excluded every African-American from the jury pool based upon bogus pretexts. The prosecutors even circled the race of the African-American jurors and highlighted the African-Americans as “definite NOs.”  The prosecution excluded one African-American woman because her age was so close to the defendant but she was 15 years younger and the prosecutors included 8 white jurors whose age was close to the defendant. There are many more examples like that, you can read more about Justice Sotomayor and the jury selection bias case here.

In Florida, a 2000-2010 study of juries in Sarasota and Lake Counties found that 1) juries formed from all-white jury pools are 16 percentage points (or 22.7% more likely)  to convict black defendants than white defendants, and 2) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member.   See “The Impact of Jury Race in Criminal Trials” for more information.

Along the same vein, in the New Jim Crow Chapter 5, Michelle Alexander argues that the mass disfranchisement of largely minority felons is akin to the poll taxes, literacy tests and other forms of racially motivated voter suppression utilized after the Civil War.  If you haven’t read this book yet, it’s an eye opening read. (Amazon link here.)

I think a big takeaway from these example is how important it is to get disenfranchised Persons of Color back in the jury pools.  However, here in Florida we have moved in the opposite direction in the past five years.  In 2010, Gov. Rick Scott reimposed the lifelong denial of civil rights to convicted felons, unless pardoned by the Governor himself.  Florida law is unique, insofar as the convicted felon must be pardoned by the Governor and a majority of the publicly elected State Cabinet in order to restore one’s civil rights after being convicted of a felony (and pretty much everything is a felony these days). It’s so bad that the UN is convening a panel to determine if the U.S. is violating international civil rights standards set forth in the International Covenant on Civil and Political Rights (ICCPR).  If you are interested in helping, the ACLU is working toward reinstating automatic restoration of civil rights and you can sign their petition in support of voting rights here (*link no longer available as of January 12th, 2021).

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Nevada Supreme Court Strikes Down DUI Implied Consent Law
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Nevada Supreme Court Strikes Down DUI Implied Consent Law
Nevada Supreme Court Strikes Down DUI Implied Consent Law 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

Last week, the Nevada Supreme Court ruled that Nevada’s implied consent law, which allows police officers to take blood samples of motorists to determine impairment, is unconstitutional under the 4th Amendment.  Its ruling relied on the US SC  decision in Missouri v. McNeely which held that the fourth amendment may require a warrant for a blood test in a drunk-driving investigation.

Jurist summary here: http://jurist.org/paperchase/2014/10/nevada-high-court-strikes-dwi-implied-consent-law.php

Florida Implications:  The Nevada SC and SCOTUS cases seem to have two implications. First, warrantless blood draws in felony bodily injury cases might be subject to suppression if the  State cannot demonstrate that obtaining a warrant would significantly undermine the efficacy of test of the blood draw.  Florida Statutes, Section 316.1933(1), permits forcible warrantless extraction of a blood sample if the officer has “reasonably trustworthy information,” sufficient to cause a person of reasonable caution to believe that a driver was under the influence of alcoholic beverages at the time of an accident causing death or serious bodily injury of a human being, even if the only one injured is the driver.  The holding in McNeely provides that there can be no per se exigency exception to the warrantless blood draw and thus these blood draws may be ripe for a factually intensive MTS to determine if police could have obtained a warrant.  However, note that at least one circuit court has denied a MTS on the specific facts of the case.    In contrast to felony DUI blood draws, MM warrantless involuntary blood draws are invalid, as the Fifth district held that Section 933.02 Florida Statues precludes police from securing a warrant for a DUI blood draw in MM DUIs.  State v. Geiss, (Fla. 5th DCA 2011).  (However, consensual voluntary blood draws would still be admissible, see e.g. State v. Slaney, 653 So. 2d 422, 427 (Fla. 3rd 1995)).

Second, Florida’s implied consent for blood draws might not be constitutional.  Law enforcement can ask for a blood draw when a breath/urine sample is “impracticable ” under implied consent; a driver can refuse but is subject to DL suspension/penalties.  See section 316.1932(1)(c).  It stands to reason that if a request for blood draw cannot be compelled under the 4th amendment, then Florida’s implied consent law which provides for penalties for a refusal might be suspect under McNeely.  (This is basically what the NV SC held.)   There do not appear to be any Florida cases on point yet.

If you have a warrantless blood draw case, you may want to read this excellent 36 page legal brief discussing the Florida implications for blood draws: “A COMPREHENSIVE ANALYSIS OF THE IMPACT OF  MISSOURI v. McNEELY ON FLORIDA DUI PROCEDURES” available here: http://goo.gl/bWr829.

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