The decision by the Pennsylvania Supreme Court to overturn the sexual assault conviction of actor Bill Cosby on Wednesday stunned many. The court said that Cosby's due process rights were violated when he was charged in 2015 for a 2004 assault. Neama Rahmani, a trial attorney in Los Angeles and a former federal prosecutor, joins Judy Woodruff to discuss.
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Judy Woodruff: The decision by the Pennsylvania state Supreme Court to overturn the sexual assault conviction of Bill Cosby stunned many today. The court said that Cosby's due process rights were violated when he was charged in 2015 for a 2004 assault. During an earlier civil trial involving Cosby and one of his accusers, a prosecutor had said that any statements Cosby made in that trial could not be used against him in a later criminal case. But they were. Today's reversal was a high-profile blow to a conviction in the MeToo era. Neama Rahmani is a trial attorney in Los Angeles and a former federal prosecutor. Mr. Rahmani, this has, as we said, taken a lot of people by surprise. In a nutshell, what did the court decide?
Neama Rahmani: Judy, you said it, stunning. I think we were all surprised when the Supreme Court — Pennsylvania Supreme Court issued its opinion today. We thought there might be an issue with the prior bad acts witnesses. That was something that they focused on during oral argument, and an issue that was litigated both at trial and appellate court. Those were the other victims that testified, particularly in Bill Cosby's second trial. But they went in a very different direction. And they focused on these statements made during the civil deposition. And not only did the court go so far as to exclude these statements, in violation of Bill Cosby's Fifth Amendment privilege against self-incrimination. They essentially said that Bruce Castor, the former district attorney, gave Bill Cosby a deal. And they enforced this agreement that would preclude subsequent district attorneys, including Judge Ferman and district attorney Steele, from actually prosecuting Bill Cosby. So this was unprecedented, unexpected and, frankly, unheard of.
Judy Woodruff: And we should say Mr. Castor was one of the attorneys representing former President Trump in his trial before the United States Senate after impeachment. But I want to ask you. You mentioned this is unprecedented. So, as the Supreme — state Supreme Court looked at this, what was it that they said the court, in making the original decision that sent Mr. Cosby to prison, had overlooked? What didn't happen here that was supposed to happen?
Neama Rahmani: Well, what the Pennsylvania Supreme Court did is, they construed one of Castor's press releases, which he signed, to be some sort of agreement. So, normally, as a prosecutor, if you want to get past someone's Fifth Amendment privilege against self-incrimination, usually, you offer them immunity. Then the privilege goes away because there's no risk of criminal prosecution. Or you can do a non-prosecution agreement. That's what Alex Acosta famously gave to Jeff Epstein in Miami. But a decision not to prosecute, that is something that prosecutors do every single day. And to issue a statement to the press in a high-profile investigation like Bill Cosby, that's something that's routine. So what the Supreme Court did there in Pennsylvania is to say that that was actually an agreement, which was shocking, because, normally, an agreement requires a criminal defendant to give something up. And Bill Cosby really gave nothing up here, aside from testimony in a civil case.
Judy Woodruff: Is there recourse, Mr. Rahmani, for the prosecution in any way here?Neama Rahmani: There really isn't, at least stateside, Judy. The doors are closed. Had the Pennsylvania Supreme Court simply suppressed the evidence, those damaging statements about drug use and sexual activity that Bill Cosby made in the civil deposition, then the district attorney's office could go back and retry the case. But since they took it so far and said that there's actually an agreement not to prosecute, state prosecutors have their hand tied — hands tied. They cannot go after Bill Cosby anymore. Now, there's a small window of possibility that the federal government, the Department of Justice, could charge Bill Cosby. I think it's very unlikely. They rarely get involved in these types of state rape cases. But that's a possibility, though very unlikely.
Judy Woodruff: And just quickly, and finally, this is taking place, as we say, in the MeToo era, when those who have committed either sexual assault or sexual harassment are to be held accountable more than ever. Is this going to affect the movement in that direction? Is this providing some sort of — do you believe it will provide some sort of chilling effect?
Neama Rahmani: Judy, absolutely, this is a huge blow and a setback for MeToo movement. We know, as prosecutors, that sexual assault is by far and away the most underreported crime in this country. Victims are hesitant to come forward. When they do, prosecutors don't take these cases, even though they're righteous cases, because they're afraid of losing and because of proof issues. Now you have these victims who have testified not only once, but twice, at very public criminal trials to see their abuser walk free, not because he's factually innocent, but because of constitutional technicality and an agreement made by a district attorney who's no longer in office. It's very disheartening, and my heart goes out to these victims. They have been through so much.