I am not indebted to Cosby`s lawyers for making the argument. That is their role, and they apparently have the evidence to refer to the argument in the form of Castor`s testimony. But the truth is that if you want to get an agreement against a prosecutor, you should get it in writing. «The Tribunal duly dismissed the application for non-prosecution. Its credibility and the realization of the lack of promise are supported by the protocol. Even if they existed, the district attorney did not have the power to grant non-legal immunity,» they wrote in their letter. This agreement was not put on paper, which the current DA, Kevin Steele, said, should have happened to prevent future prosecutions. Steele said there was no record of such an agreement. He added that while his testimony could only help Cosby`s case, he hopes the prosecution will win. His lawyers will also argue that in 2005, Cosby was granted immunity from prosecution by former Montgomery County District Attorney Bruce Castor in exchange for his dismissal from Constand`s civil trial. At best, it is «an unresolved question» as to whether an accused who has a «binding written agreement» can impose it on the district attorney. Cosby doesn`t even have that.
He said he had an oral promise that the prosecutor would not exercise his discretion to lay charges. That is less than the accused at Roby-Spencer. I have serious doubts that the rule would apply to Stipetich and Bryan if a district attorney made only an oral promise not to prosecute. Allowing this, as the Pennsylvania Supreme Court in Stipetich feared, would «open the door to wide-ranging litigation and confusion about the existence and importance of all kinds of non-persecution agreements.» We have criminal defendants all the time making claims about what the district attorney or their assistant prosecutors have said. As Thomas J. Farrell wrote in his book, the truth is that the oral guarantees, guarantees and promises of prosecutors are simply unworkable. In other words, Cosby would not be able to invoke his Fifth Amendment rights if there were no lawsuits and had to answer almost all the questions put to him. But Castor thought Cosby`s downfall would happen differently. As a reminder, last fall, Bruce Castor lost his campaign against Kevin Steele, after which Steele launched the lawsuit against Cosby.
It therefore seems that the fate of the new district attorney`s greatest case may depend on the testimony of his opponent. There is no worse place to have a political quarrel than in the middle of a criminal trial, but it seems that is exactly what is going to happen here. But with 11 years of retrospective and 7 hours at Cosby`s preliminary hearing wednesday, Castor proposed what the Los Angeles Times called a «legal theory involved»: that he «deliberately ruled out the possibility of criminal proceedings – with the so-called agreement – because he wanted to strip Cosby of any fifth protection against the changes if Constand filed a civil suit. , as the document explained. [Update, January 28, 2016: Billy Penn has a story on this subject. I do not think Justice Steven O`Neill has to think that Castor`s testimony is incredible in order for the agreement to be unenforceable.