He gets off on drugging women and fondling them, but that’s not what I meant.
As you by now no doubt have heard, Bill Cosby’s bid to have the sexual assault prosecution against him dismissed has failed:
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.
We know the details: Cosby’s lawyers allege that former prosecutor Castor promised him that if he didn’t invoke his Fifth Amendment privilege against self-incrimination, he would not be prosecuted. The new prosecutor, who defeated Castor partly on a “this guy didn’t prosecute Bill Cosby” platform, then came along and said there’s no such agreement and I’m prosecuting Bill Cosby.
I have been unable to find a copy of the judge’s ruling and it’s critical to determine exactly what he decided. The quote above seems to state that his decision is that the promise isn’t legally binding, whereas this quote from the LA Times (and this from Reuters) seems to indicate something different:
Judge Steven O’Neill ruled that there was “no basis to grant the relief request” by the attorneys
That’s quite different than saying there was an agreement but it wasn’t legally enforceable. Either there was an agreement or not and then if there was, is it enforceable. Those are two very very different questions, critically so. 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?
Assuming that there’s a promise – “if you testify at the civil proceeding, I promise to never prosecute you in criminal court” – then that induces Cosby to rely on that promise. Do all promises like that have to be in writing? Can contracts never be oral? Of course not. People enter into enforceable oral contracts all the time.
So then what does it mean? Does it mean that promises by prosecutors are only enforceable so long as the prosecutor making the promise is still in power/office?
That can’t be a result we would want the judicial system to endorse: otherwise promises of all sorts would constantly be revisited and every time a new prosecutor took over, they would file motions to revoke prior plea agreements and sentences just to appear harsher than their predecessor.
Additionally, no lawyer or defendant would have the trust to take a prosecutor at his/her word and agreements and promises to cooperate would be essentially meaningless.
Although this is precisely what current prosecutor Kevin Steel seems to be saying:
The problem is that there doesn’t seem to be any written record of any deal—which Castor has denied was a formal one—and the lawyer who represented Cosby at the time is now dead. For his part, Kevin Steel, the new Montgomery County prosecutor who replaced Castor after unseating him last fall, says he won’t throw out the case—even if evidence of a deal emerges. The whole situation is kind of a mess, and depending on what Judge Steven T. O’Neill decides, Castor’s recollection of the alleged agreement could get Cosby off from the only criminal rape case against him on a mere technicality.
So why Judge O’Neill rejected Cosby’s claim is critical, especially since Castor testified that:
He said that when he first declared he wouldn’t pursue charges against Cosby, he was declaring none of his successors would, either.
“Mr. Cosby was not getting prosecuted at all – ever – as far as I was concerned,” Castor said. “My belief was that I had the power to make such a statement.”
So which is it: Did Castor make an oral promise? Did he have this belief that he kept to himself? Or did Judge O’Neill rule that oral promises aren’t good enough?
As a side note, it’s really important to note that enforcing a promise made by a prosecutor to a criminal defendant – rich or poor – whether that promise was made orally or in writing, is not a “weird/mere technicality” as Vice write Allie Conti says in that quote above. She calls the enforcement of an oral agreement not to prosecute a “mere technicality” but then inexplicably goes on to say:
What makes the whole thing even stickier is that it was the very same civil suit testimony Cosby gave that inspired the new criminal case a decade later.
Anyone who thinks that falsely promising a defendant immunity to get him to admit to criminal behavior in a civil deposition and then 10 years later using that admission to form the basis of a criminal prosecution in violation of the immunity agreement is just fine and any attempt to enforce due process is a “mere technicality” is an incompetent moron who should not be given the task of covering stories which impact our individual rights.