Bill Cosby's Pennsylvania prosecutor may get another chance to put the formerly convicted sex offender back behind bars.
Kevin Steele, the Montgomery County district attorney who prosecuted Cosby and obtained a conviction in 2018, petitioned the nation's high court on Monday to review the ruling that overturned Cosby's conviction.
On June 30, the Pennsylvania Supreme Court reversed Cosby's conviction on constitutional grounds, turning on whether he received a fair trial and whether his due process rights were violated. The reversal argued that a previous prosecutor's decisions years earlier precluded Cosby being criminally prosecuted on allegations he molested a woman in his suburban Philadelphia home in 2004.
Prosecutors used damaging evidence that Cosby turned over in a civil case to convict him of criminal offenses, even though former District Attorney Bruce Castor years earlier told him and the public that those charges were off the table.
Cosby, 84, was released from a Pennsylvania state prison within hours of the state court's decision.
In the stunned aftermath of that reversal, Steele indicated he might petition the U.S. Supreme Court; Monday was the deadline to do so.
In a statement, Steele said the question he is presenting to the high court in a writ of certiorari involves the 14th Amendment to the U.S. constitution.
The relevant part of the amendment says in part: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law."
"The question presented to the Court is: 'Where a prosecutor publicly announces that he will not file criminal charges based on lack of evidence, does the Due Process Clause of the Fourteenth Amendment transform that announcement into a binding promise that no charges will ever be filed, a promise that the target may rely on as if it were a grant of immunity?' " Steele's statement said.
In his brief, Steele argues that district attorneys issue public statements all the time. Under Cosby's rationale, he says, the accused in those cases could claim "forever immunity" regardless of whether new evidence comes to light.
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He urged the court to review the Cosby decision to reconcile conflicts with state and federal law, and to avoid potentially widespread jurisprudential confusion.
"But now, after the jurisprudential upheaval from the state supreme court’s decision in Cosby, there is nationwide uncertainty about whether forever immunity can be bestowed upon a defendant simply by a public statement declining to file charges," Steele argued in his brief.
The high court does not have to accept the petition. Under court rules, it could take up to six weeks for the court to act once a petition has been filed, responses received, the case is circulated among justices and a case is scheduled for consideration at one of the justices’ private Friday conferences.
Andrew Wyatt, Cosby's spokesperson, issued a statement to USA TODAY saying the petition is "pathetic" and a sign of the prosecutor's "fixation" on Cosby.
"The Montgomery County D.A. asks the U.S. Supreme Court to throw the Constitution out the window ... to satisfy the #metoo mob," the statement said. "There is no merit to the DA’s request ...The (high court) does not typically interfere with the rulings of a state’s high court unless it conflicts with the decisions of other state high courts or our federal court of appeals.
"This is a pathetic last-ditch effort that will not prevail. The Montgomery’s County’s DA’s fixation with Mr. Cosby is troubling to say the least," Wyatt concluded.
Cosby's lead appellate attorney, Jennifer Bonjean, told USA TODAY she would be filing a response to Steele's petition. She rejects the argument that there are "important federal questions" in dispute that the court must address, thus making the case "ill-suited" to review by the U.S. Supreme Court.
She said the case is about "more than a press release." Cosby and his lawyers believed a promise had been made about immunity when he sat for the deposition in 2006.
"Steele is attempting to frame the question in a misleading way that makes the issue seem more controversial than it actually is," she said. "This fact scenario has never occurred before and is unlikely to occur again. (The Supreme Court has) no interest in this case but we shall see."
Meanwhile, Steele should focus on protecting the citizenry of Montgomery County "rather than attempting to save his failing political agenda by incarcerating an 84-year-old blind man who already served three years of an illegal sentence," Bonjean said.
At his second trial (the first trial ended in a hung jury in 2017), Cosby was convicted of drugging and molesting Temple University employee Andrea Constand at his suburban Philadelphia estate in 2004. He was sentenced to three to 10 years in prison and served nearly three years before being released.
Cosby, an acclaimed actor and comic once known as "America's Dad," became the focus of more than 60 accusations of sexual assault beginning in the fall of 2014. He was charged in the Constand case in late 2015, when Steele – armed with newly unsealed evidence from Cosby’s damaging deposition in Constand's civil lawsuit – arrested him days before the 12-year statute of limitations expired.
When the conviction was reversed, Steele said in a statement to USA TODAY that Cosby "now goes free on a procedural issue that is irrelevant to the facts of the crime." Because of the decision, he said, Cosby could not be tried a third time.
"My hope is that this decision will not dampen the reporting of sexual assaults by victims," Steele said in the statement. "We still believe that no one is above the law – including those who are rich, famous and powerful.”
Constand issued a statement to USA TODAY through her lawyers in June, saying the reversal by the state high court was "disappointing" because it could discourage victims from coming forward. She called the decision a "procedural technicality."
This article originally appeared on USA TODAY: Bill Cosby: Supreme Court asked to review overturned conviction