Bill Cosby and the Problem With Prosecutors' Campaign Promises

When President Obama first ran for President, he campaigned on a platform that, if elected, he would gain affordable health care for all Americans -- and he enacted it. Donald Trump campaigns on a promise to build a wall across the southern border of the United States to keep out undocumented Mexicans. Enough said. Whether or not one agrees with those or other platforms, it is perfectly permissible, perfectly ethical, for a presidential candidate -- or, for that matter, a legislative candidate -- to tell the electorate what he plans (even promises) to do if he is elected to office. And, if he is indeed elected, the voting public should hold him to his campaign promises!

But, what if the candidate is running to be the District Attorney, the County's chief prosecutor? Sure, a candidate can say she will routinely seek the death penalty (or will not do so), assuming she has that discretion. She can promise to "clean up the streets," work with law enforcement and the public who may distrust the police, put an end to drugs in her town - there is nothing wrong with those types of campaign promises. And maybe, if elected, she will actually accomplish some of those goals.

But what if the campaign promises are something altogether different? What if the candidate runs a campaign promising that, if elected, he will indict a specific individual -- something his adversary failed to do in the past. Let's forget the grand jury system; let's forget whether there is sufficient evidence to sustain a conviction; let's forget a prosecutor's ethical, legal and social obligation to do justice. Let's just elect the guy who says he is going to make an arrest!

While the idea may have superficial appeal, we all know that it can't be right -- a prosecutor simply cannot trade his ethical obligations for a campaign promise; either there is enough evidence to charge a person or there is not. Except, it appears that this is exactly what has occurred in the instance of the only criminal charge against Bill Cosby -- brought in Elkins Park, Montgomery County, Pennsylvania.

First, a little background: In 2005 Cosby's alleged victim, Andrea Constand, asked the then-District Attorney of Montgomery County, Bruce Castor, Jr., to charge Cosby with rape; Castor declined citing insufficient evidence. And he went further. He oddly told reporters: "In Pennsylvania, we charge people for criminal conduct. We don't charge people for making a mistake or doing something foolish." Constand then sued Cosby in civil court and that case was settled in 2005, but not before Cosby gave a deposition under oath. His testimony was sealed and thus unavailable to the public until the summer of 2014. We now know that, during the deposition, Cosby made disturbing admissions -- he had used drugs to make women more malleable to his sexual entreaties. Castor left the DA's office in 2008, replaced by a new District Attorney, Risa Vetri Ferman. By 2015, Ferman was running for a judgeship and Castor announced he would run to regain his position as DA. The race was thus between Castor and Ferman's First Assistant District Attorney, Kevin Steele, a career prosecutor. Armed with Cosby's 2005 deposition, and complaints recently made public by numerous other women throughout the country, Ferman and Steele re-opened the investigation because the time within which to arrest Cosby had not yet expired. Fair game, to be sure.

But here is where ethical problems arise. Steele used Castor's failure to have indicted Cosby in 2005 in an extremely aggressive campaign for District Attorney. Castor fired back that since Steele now had information Castor did not have back in 2005, why didn't Steele just charge Cosby, rather than campaign on the issue. There were TV ads, Facebook and twitter posts and news report after news report. It appears, in fact, that the Cosby "issue" became the focal point of the campaign.

So, to complete the story and its ethical implications, on the next to last day of the year, when Ferman was packing up her belongings to move to her judge's chambers, Steele stepped to the national microphone to announce the charges against Cosby for aggravated indecent assault, a second-degree felony. Slyly, he made the announcement while still technically an assistant in the employ of the incumbent and outgoing District Attorney Ferman, lest Cosby argue the obvious: that he was the victim of a campaign pledge by Steele. As if that isn't exactly what happened.

Now, to be sure, it would have been perfectly proper for Steele, armed with new, compelling evidence, to charge Cosby given the new evidence, even though a prior administration had declined to prosecute. Facts change, and even assessments by professionals of the available evidence may be different. But do we want prosecutors to be making charging decisions when - by all reasonable interpretation -they are being made to enhance a prosecutor's political profile, particularly in the midst of a hotly-contested political campaign? Think about it -- a candidate runs on a platform criticizing a prior prosecutor's decision to not indict. That's OK as far as it goes. But here, the time to charge had not yet expired and rather than just charge Cosby, Steele made a campaign promise -- basically, elect me and I will indict. His success in the election became dependent on a promise to charge Cosby, post-election. How then can he possibly bring the objectivity and dispassionate search for justice that his professional duty calls for?

Bill Cosby is hardly a poster child for the status of "victim." If only one of the pending accusations is true, of course he deserves what he is getting in the court of public opinion, and may get in a court of law. However, the court of public opinion -- which, frankly, doesn't care if a prosecutor has gone overboard in his ethical conduct victimizing a criminal defendant, as long as the criminal defendant seems deserving of prosecution (as Bill Cosby appears to be) - doesn't take into account the dangerous precedent that is being set when a prosecutor is basically allowed to run on a campaign that says "Count on it voters: I will indict X as soon as I get into office!"

Because if we allow candidates to do that, we are allowing candidates -- and not responsible professional prosecutors -- to pull the trigger on whether to indict. Charges could have been brought against Cosby before the election ramped up; another attorney in the Montgomery County DA's office could have handled the case. But no, the task fell to Steele, as candidate. And that is the problem.

Even suggesting that Bill Cosby is a "victim" will raise the ire of many readers. But he is not really the "victim." He's simply the precedent -- a sad and problematic precedent where a prosecutor does not employ prosecutorial discretion in making their momentous decisions, but instead promises scalps as a politically expedient way to help them get elected.