Mimesis Law
19 September 2021

Bill Cosby And The Deal That Might Have Been

Feb. 4, 2016 (Mimesis Law) — Judge Steven O’Neill ruled from the bench that the alleged 2005 promise by then-Montgomery County District Attorney, Bruce Castor, not to prosecute Bill Cosby in order to remove the bar of the Fifth Amendment in the civil action against him by Andrea Constand, would not prevent his prosecution by current District Attorney Kevin Steele.

Because . . . nobody really knows.

The judge acknowledged the dispute amounted to uncharted legal waters. “This is a very unique situation,” he said.

Fascinating as the editorial comment of a non-lawyer reporter may be, the judge calling something “a very unique situation” does not make it “uncharted legal waters.” What makes this situation “very unique” is that the promise not to prosecute was not in writing.

Former DA Castor took the witness stand and testified that he did, indeed, make the promise.

At the time, Castor said, he concluded there was insufficient evidence to prove Andrea Constand’s claims that Cosby had drugged and assaulted her at his Cheltenham mansion a year earlier.

Testifying Tuesday, Castor maintained that his 2005 declaration not to prosecute was meant to help Constand. He testified that all the parties knew about the non-prosecution agreement, which he said stripped Cosby of his ability to plead the Fifth Amendment and paved the way for him to be deposed in Constand’s civil suit.

Assuming that Castor didn’t perjure himself, which would be supported by the fact that Cosby did not assert his Fifth Amendment privilege during the Constand deposition, this pretty much establishes the existence of an agreement not to prosecute. And the subsequent deposition constitutes detrimental reliance on that agreement, which for you contract law nerds, provides consideration.

But what it does not explain is how it’s possible that the lawyer for Cosby at the time failed to get the promise not to prosecute in writing. It is, to use a legal term, nuts. Or to be more colloquial, stupendously incompetent.

The problem with any effort to figure out why Judge O’Neill denied the defense motion is that he failed to explain his reasoning. As Gideon at A Public Defender notes, that leaves us to speculate as to what the judge could possibly be thinking.

If there was no agreement to begin with, then the inquiry is quite simple. The judge finds that Castor was full of crap and Cosby’s lawyers were full of crap or that there wasn’t enough evidence from which to conclude that there was actually a real agreement beyond the wink and nod stage and says oh too bad that’s it move on.

If, on the other hand, as Philly.com reports, the judge found that the promise wasn’t legally binding, then that’s a complicated legal question that has tremendous implications. Once we accept that a promise was made by the prosecutor to Bill Cosby, then the question becomes:

What does it take to make that promise enforceable forever and why wasn’t this promise enough?

The problem arises from dueling characterizations of the judge’s ruling. At Philly.com, the denial was characterized as “not legally binding.”

A Montgomery County judge on Wednesday rejected Bill Cosby’s motion to dismiss his sex assault case, ruling that a promise from the county’s former district attorney was not legally binding and didn’t bar prosecutors from ever bringing charges against the comedian over an alleged 2004 attack.

The LA Times and Reuters, however, wrote:

Judge Steven O’Neill ruled that there was “no basis to grant the relief request” by the attorneys.

These are not the same thing, as Gideon makes clear. The former description appears to credit Castor’s testimony that the deal was made, but that it somehow failed to suffice as a matter of law. The latter suggests that the judge found Castor’s testimony to be incredible and that there was no such deal.

Notably, much has been made of the aspect that the promise not to prosecute could be made “forever,” as if an agreement reached is good for ten minutes or ten years in the absence of any time limit.

This is a red herring. Agreements are always “forever,” unless they include a condition that they’re not. Imagine Chevrolet pulling up to your house to take back your ’62 Impala because they’ve decided you’ve owned it long enough, and the contract of sale is over. “You had it long enough,” the guy driving the tow truck tells you. “Did you think you bought it forever?”

Yet, it’s hard, if not impossible, to explain why Cosby’s lawyer, the one who handled the negotiation with Castor, or advised Cosby that he had no reason to assert his constitutional right not to incriminate himself when he sat down to be deposed, didn’t get the agreement in writing.

Such an agreement would be expected to include any terms and conditions. Such a writing would memorialize the existence of an agreement not to prosecute, so that it wouldn’t require testimony by Bruce Castor to establish the existence of a promise. What if Castor got hit by a truck and died? Then there would not only be no written agreement, but no witness to testify as to its oral existence.

What the hell was the lawyer thinking?

Whether the basis for the court’s denial of the motion was Castor’s lack of credibility or a conclusion that such an agreement, if it existed, must be in writing remains the judge’s secret. Perhaps he’ll explain at some point, which would make an appeal of his ruling a heck of a lot easier.

If it’s based on a finding that Castor’s testimony was not credible, it would make an appeal very hard to win, as appellate courts are extremely deferential to trial court findings of credibility. If the ruling is based on some Statute of Frauds-type holding, that an agreement not to prosecute requires a writing, then the appellate court will be well-positioned to reach its own determination.

Either way, the confusion surrounding Cosby’s case continues to thicken, even as it makes two points as clear as possible. Get agreements in writing, and no matter how rich you are, there is no guarantee of competent counsel. Go figure.

10 Comments on this post.

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  • Bob
    4 February 2016 at 10:22 am - Reply

    Is an agreement not to prosecute executed in one state binding on prosecutors in another state?

    • shg
      4 February 2016 at 10:24 am - Reply

      No sovereign can bind another sovereign.

      • Lee Pacchia
        4 February 2016 at 10:39 am - Reply

        I just heard Teddy Roosevelt cackle in his grave.

        • shg
          4 February 2016 at 10:45 am - Reply

          Teddy is buried just down the road from me. He cackles a lot.

      • Raccoon Strait
        4 February 2016 at 10:53 am - Reply

        “No sovereign can bind another sovereign.”

        Sorry about the subject change, but would you please explain that to those who are pushing ISDS (corporate sovereignty) via the TPP and other trade agreements?

        • shg
          4 February 2016 at 10:55 am - Reply


      • Bob
        4 February 2016 at 11:00 am - Reply

        So, what’s the argument then? Even if the agreement was written, it wouldn’t be binding on the Pennsylvania prosecutor.

        • shg
          4 February 2016 at 11:07 am - Reply

          It’s the same sovereign. That the officeholder changed doesn’t change who the sovereign is.

  • Jay
    4 February 2016 at 1:22 pm - Reply

    Raises a new question of why his current counsel didn’t ask the judge to clarify his ruling since they’ll obviously appeal.

    • Jay
      4 February 2016 at 1:24 pm - Reply

      Though I wouldn’t be surprised if the answer is that the Magistrate doesn’t have the power to rule on this kind of issue so they have to go through the prelim and get to District Court before this kind of Motion can be handled. That’s how it works in my state.