[Update, January 20, 2016: The Montgomery County District Attorney’s Office filed its response, laying out how Cosby’s claimed “non-prosecution agreement” is really a grant of immunity, which is only available by a specific statutory process that was not even arguably followed here. Intriguingly, they also include correspondence between the prior District Attorney (Risa Vetri Ferman) and Bruce Castor, in which Ferman bluntly said she had never heard of this agreement and asked Castor to provide every document he had reflecting the agreement. Castor pointed only to that same press release which says nothing about immunity.]

[Update, January 28, 2016: Billy Penn has a story on the issue. I disagree that Judge Steven O’Neill would be required to find Castor’s testimony incredible in order to find the “agreement” unenforceable. Rather, I think Jeffrey Lindy has it right:

“Every DA is different,” said Jeffrey Lindy, a Philadelphia defense attorney and former prosecutor. “I’ve never heard of oral immunity. What I have heard of is a nod and a wink.” … Lindy said it’s possible Castor didn’t want a record of the deal and Phillips, who was “very old fashioned,” agreed to the oral deal because it might have been the best he was going to get.

Exactly. The best Cosby could get from Castor was “a nod and a wink.” That’s not the same thing as an enforceable immunity agreement.]

Last week, Bill Cosby filed a “petition for writ of habeas corpus” which argued:


The charges violate an express agreement made by the Montgomery County District Attorney in 2005, in which the Commonwealth agreed that Mr. Cosby would never be prosecuted with respect to the allegations of sexual assault made by complainant Andrea Constand This agreement was made for the express purpose of inducing Mr. Cosby to testify fully in Ms. Constand’s civil litigation against him. In reliance on that agreement, Mr. Cosby testified in 2006 without indication of his constitutional rights against self-incrimination.


It would sure be helpful to see a copy of that agreement, but it turns out there is no written agreement at all. Rather, the “agreement” was a conversation between Cosby’s lawyer and the District Attorney, a conversation that neither Cosby’s lawyer nor the District Attorney documented at the time. Cosby’s petition says, “Although Mr. Cosby’s then-counsel is since deceased, then-District Attorney Bruce Castor has confirmed he entered into this agreement on behalf of the Commonwealth. Mr. Cosby is prepared to offer Mr. Castor’s testimony at an evidentiary hearing on this petition.”


As a reminder, last fall Bruce Castor lost his electoral battle against Kevin Steele for the office, after which Steele initiated the prosecution against Cosby. So it seems the fate of the new District Attorney’s biggest case may hinge upon the testimony of his opponent in the election. There are few worse places to take a political feud than to the middle of a criminal trial, but it seems that’s just what will happen here.


Wait, it gets better.


As far as I can tell, there was apparently never any mention of this oral agreement until 2015. No statements in court proceedings, no letters exchanged, not even any memos by the lawyers documenting the conversation. At the time Castor declined the prosecution, he made no mention whatsoever of an agreement. Instead, he issued a press release that said:


The district attorney finds insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt. In making this finding, the district attorney has analyzed the facts in relation to the elements of any applicable offenses, including whether Mr. Cosby possessed the requisite criminal intent.


That press release says the District Attorney made a “finding” that he could not prosecute Cosby under the available facts, which is inconsistent with the idea that Castor negotiated an agreement with Cosby’s lawyer.


Last July, as the failure to prosecute Cosby became a campaign issue, Castor said he would prosecute Cosby if he could prove Cosby had given false testimony at the deposition, and he encouraged prosecutors in other jurisdictions to consider the same. That vow seems more than a little strange — typically, if a defendant breaches an agreement with a prosecutor, such as by being granted immunity and then giving false testimony, the whole thing is a bust, and the prosecutor goes right back to court to pursue the original charges.


But in that same interview Castor also laid the groundwork for this “agreement” issue:


The D.A.’s office “didn’t have enough evidence,” he said. “The best thing to do was to create an atmosphere that they [Constand and her attorneys] have the best opportunity to sue.”

In other words, Cosby wouldn’t be able to invoke his Fifth Amendment rights if there was no prosecution and would have to answer almost any question posed to him. But Castor believed that Cosby’s downfall would happen a different way.


A few months later, Castor apparently emailed Risa Vetri Ferman (who was then the District Attorney and is now a judge):


I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression.

I cannot believe any state court judge would allow that deposition into evidence. …. Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.


As Bill Cosby once said, “There are two sides to every story, and sometimes three, four, and five.”


Let’s assume there was a conversation between Bruce Castor and Cosby’s lawyer in which Castor assured there would be no prosecution so long as Cosby didn’t invoke his Fifth Amendment rights at the deposition in Constand’s civil lawsuit. Even if that’s the case, the law probably won’t protect Cosby. Kevin Steele’s response to CNN was, “There is a specific legal method to grant immunity. That was not done in 2005.” Indeed.


Let’s start with the basics. Every enforceable “agreement” between a defendant and a prosecutor is in writing, and they’re typically all entered with the court. Every plea bargain, every non-prosecution agreement, and every grant of immunity is written down somewhere so that it can be enforced later if one of the sides doesn’t honor the agreement. An oral “promise” from a prosecutor is generally unenforceable.


Don’t take my word for it. Here’s an excerpt from Thomas J. Farrell’s excellent Criminal Defense Tools and Techniques, sections 17:101 (“Making a Record”) and 17:102 (“Off-the-Record Agreements”):


If the judge or prosecutor makes any assurances, either make sure they are memorialized in a writing that becomes an exhibit at the plea or repeat them for the record at the time of the plea. Courts will not enforce unarticulated agreements or side agreements not found in a written agreement. See United States v. Wells, 211 F.3d 988, 996 (6th Cir. 2000); In re Altro, 180 F.3d 372, 375-77 (2d Cir. 1999) (where there was a written plea agreement, defendant could not rely on government’s promise that he would not be required to testify before the grand jury). …

The prosecutor knows that such an assurance is legally unenforceable; he is asking you to rely on his or her good faith. … You must realize and inform your client that such side agreements are not enforceable. You are at the mercy of the prosecutor’s and judge’s good faith; therefore, you must evaluate their trustworthiness. … You are taking a chance on probabilities, and the best you can do is to elicit as many facts as possible by asking the prosecutor whether any other agency or jurisdiction expressed interest in the case. Advise your client accordingly.


In other words, no matter what a prosecutor promises a defendant, the defendant’s lawyer needs to get it in writing or to understand that they are taking a risk.


I don’t want to imply that Cosby’s lawyer at the time was negligent or that he made a mistake by failing to get the agreement in writing. It’s possible he told Cosby exactly what was going on and advised Cosby to accept the risk. If so, it worked for ten years. Maybe it will keep working, but I doubt it.


Here’s why not: because Castor’s supposed unwritten “promise” isn’t an enforceable contract.


Cosby’s petition argues:


Like plea agreements, non-prosecution agreements are enforceable, binding against the Commonwealth, and must be strictly enforced, “[b]ecause the integrity of the judicial system demands that the Commonwealth live up to its obligation.” Commonwealth v. Ginn, 402 Pa. Super. 405, 410, 587 A.2d 314, 316-17 (1991) (affirming trial court’s dismissal of charges based on enforcement of promise made by district attorney). Although it arises in a criminal context, the agreement between the prosecutor and the accused is “contractual in nature and is to be analyzed under contract law standards.” Commonwealth v. Hainesworth, 82 A.3d 444, 449 (2013) (quoting Commonwealth v. Kroh, 440 Pa. Super. 1, 9, 654 A.2d 1168, 1172 (1995) (affirming specific enforcement of plea agreement)). Ambiguities in such agreements “will be construed against the [Commonwealth].” Id. (quoting Kroh, 654 A.2d at 1172).


That sounds good, but the cases he cites don’t support his argument that a prosecutor’s oral promise not to prosecute in exchange for effectively nothing, e.g., neither a guilty plea nor an agreement to provide evidence, is enforceable in the same way as a written plea agreement.


Every single case there involved a written plea bargain in which the prosecutor and the defendant reached an agreement where each gave up something, typically a plea in exchange for dropping certain charges or recommending a lower sentence. Here’s the full quote from Commonwealth v. Kroh:


Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards. Furthermore, disputes over any particular term of a plea agreement must be resolved by objective standards. A determination of exactly what promises constitute the plea bargain must be based upon the totality of the surrounding circumstances and involves a case-by-case adjudication.

Any ambiguities in the terms of the plea agreement will be construed against the Government.


Kroh, 440 Pa. Super. 1, 9-10, 654 A.2d 1168, 1172 (1995)(citations omitted, emphases added).


Similarly, Commonwealth v. Ginn, 402 Pa. Super. 405, 407, 587 A.2d 314, 315 (1991), involved a very specific plea agreement in a complicated fraud prosecution, in which the prosecutor and the defendants agreed to have an independent accountant audit the books and then to abide by the accountant’s findings. The agreement was confirmed on the record in front of the court, which is how the court could so easily enforce it against the prosecutor when the prosecutor tried to file charges even after the independent accountant found no fraud.


Cosby’s claim about Castor’s promise also isn’t anything like a normal “immunity” agreement, as is found in cases involving organized crime. In those cases, the agreement is written and signed, and it includes a detailed description of what the defendant is expected to do and what the prosecution gives up. Here’s an example of the language from one:


[Defendant] agrees to be fully debriefed concerning his knowledge of, and participation in, the bribery of police officers and any other crimes about which he has knowledge. He further agrees to fully cooperate in the ongoing investigation of corruption in the Philadelphia Police Department. If [Defendant] provides truthful, complete and accurate testimony or information regarding bribery of police and police corruption, such testimony or information shall not be used against him in any other criminal proceeding.


Commonwealth v. Johnson, 419 Pa. Super. 625, 638, 615 A.2d 1322, 1328 (1992). In that case, the court nonetheless allowed the defendant to be prosecuted for crimes unrelated to bribery. Agreements with prosecutors are typically interpreted against the government, but the defendants are still held to the language of the agreement. Here, there’s not even an agreement, much less specific language the court can look at to interpret.


Cosby’s case has nothing in common with any of those cases. Cosby doesn’t say he had a plea agreement, an immunity agreement, or the normal “non-prosecution” agreement in which the defendant agrees to something else — like alternative punishment — in exchange for avoiding prosecution.


Even if we take everything Cosby says in his petition at face value, and we assume a court will enforce a District Attorney’s oral promise to not prosecute, there’s still a huge problem: there’s no “consideration.” For a contract to be valid, there has to be “consideration,” in which the parties each give something up to one another.


Typically, the only way to avoid this requirement is if there’s a written agreement that specifically says adequate consideration has been provided. See Socko v. Mid-Atl. Sys. of CPA, Inc., No. 142 MAP 2014, 2015 WL 7283317, at *9 (Pa. Nov. 18, 2015)(“a written agreement will not be deemed to be void for lack of consideration if it contains an express statement that the signer intends to be legally bound,” emphases added). Cosby doesn’t have a written agreement and he didn’t give the Commonwealth anything: he didn’t plea to any charges, didn’t agree to any punishment of any sort, and didn’t provide any evidence that could be useful in other prosecutions.


But we’re still not done. Even if the Court made it past all of those issues, Cosby still wouldn’t be guaranteed a victory. Consider the case of Commonwealth v. Roby-Spencer, 594 Pa. 14, 934 A.2d 693 (2007).


In Roby-Spencer, a notary public was with charged with forgery and theft. The District Attorney and the defendant entered into a written agreement where she agreed to relinquish her notary public license, discontinue her notary business, deposit funds into an escrow account for restitution, and waive her constitutional right to a preliminary hearing. In exchange, the District Attorney agreed to recommend the defendant be admitted into the Accelerated Rehabilitative Disposition (ARD) program.


The defendant did everything she was supposed to do and, when it came time to schedule the ARD hearing, the District Attorney reneged. The trial court ordered the agreement be enforced, but the Pennsylvania Superior Court reversed, holding that it was in the District Attorney’s sole discretion as to whether or not to recommend ARD, regardless of any written agreement.


The defendant appealed to the Pennsylvania Supreme Court, which denied the petition, effectively approving the Superior Court’s decision. Justice Baer dissented and said the Supreme Court should have heard the case, in part because:


[T]he impact of an agreement between the DA and a defendant remains an open question in Pennsylvania. In no obvious scenario would a party be permitted to enter into a binding written agreement, induce actions in reliance on the agreement, reap the benefits of the agreement, and thereafter renege on the agreement where there is no change in circumstances.


594 Pa. at 17-18, 934 A.2d at 695.


Thus, it is at best “an open question” whether a defendant who has a “binding written agreement” can enforce that against the District Attorney. Cosby doesn’t even have that. He says he has an oral promise that the prosecutor wouldn’t exercise his discretion to bring charges. That’s less than the defendant had in Roby-Spencer.


To the extent Cosby has any remedy at all, it might be through the Supreme Court’s dicta in a 1995 case that threw out a “non-prosecution agreement” that was offered by the police without the district attorney’s consent, after which the defendant provided incriminating testimony: “The proper response to this concern is not to bar prosecution; rather, it is to suppress, at the appropriate juncture, any detrimental evidence procured through the inaccurate representation that he would not be prosecuted.” Commonwealth v. Stipetich, 539 Pa. 428, 431-32, 652 A.2d 1294, 1296 (1995); accord Commonwealth v. Bryan, 2003 PA Super 70, ¶ 14, 818 A.2d 537, 542 (2003)(“Had incriminating information been obtained against Appellee as a result of the unauthorized agreement, he would be entitled to have that evidence suppressed.”)


Under the rule in Stipetich and Bryan, Cosby could move to have the deposition testimony kept out of his criminal trial, under the theory that the prosecution only got that testimony because of its promise to Cosby.


I have serious doubts that the rule in Stipetich and Bryan would apply where a District Attorney gives merely an oral promise to not prosecute. Allowing that would, as the Pennsylvania Supreme Court worried in Stipetich, “open the door to extensive litigation and confusion over the existence and meaning of all manner of alleged non-prosecution agreements.” We’d constantly have criminal defendants making claims about something the District Attorney or their assistant prosecutors said. Like Thomas J. Farrell wrote in his book, the truth is that oral assurances, guarantees, and promises by prosecutors just aren’t enforceable.


But let’s assume for a moment that the rule in Stipetich and Bryan applies even where the agreement wasn’t in writing. I still don’t think Cosby’s deposition should be excluded. It is by no means clear that Bill Cosby freely testified at his deposition (instead of invoking his right against self-incrimination) solely to honor his unwritten agreement with Castor. Rather, Cosby was likely told by his lawyers that, if he had refused to testify, he would have been hit with an “adverse inference” at the civil trial. The jury would have been free to conclude that he asserted his rights because he knew he did something criminal. That rarely bodes well for defendants.


I don’t fault Cosby’s lawyers for making the argument. That’s their job, and they apparently have the evidence to raise the argument, in the form of Castor’s testimony. But the simple truth is, if you want to enforce an agreement against a prosecutor, you better get it in writing.