The overturning of Bill Cosby’s sexual assault conviction has shocked people across the country, and Cosby’s release after serving several years in prison leaves no one (accused, victims or the public) well served. While some have criticized the Pennsylvania Supreme Court ruling, we agree with those who say that the blame lies primarily with former Montgomery County District Attorney Bruce Castor and, more broadly, with the uneven distribution and lack of transparency in non-prosecution agreements and denial of prosecution decisions.

The Cosby case demonstrates once again that the prosecutor is most powerful when she refuses to exercise her power to press charges. Courts have repeatedly held that the prosecutor’s decision do not suing a defendant is largely non-reviewable. This means that most of the time we will only have the political process to rely on to constrain non-charge decisions. But the political process doesn’t mean much if the prosecutor is operating in the dark.

Following this affair, Castor insisted that he had never entered into a no-prosecution agreement with Cosby; but as he made that decision, he nonetheless informed Cosby’s attorney that he would issue a press release announcing his office’s intention to drop the prosecution and he spoke clearly with Cosby’s attorney about the ongoing civil proceedings looming on the horizon. Castor believed his final position would secure Cosby’s participation in subsequent civil proceedings. With criminal prosecution off the table, Cosby would have no reason to invoke his Fifth Amendment privilege against self-incrimination.

To a third-party observer, this arrangement certainly seems like a deal. But Castor refused to label it as such, and worse yet, failed to commemorate it in a way that preserves the intentions of the parties. As a result, Castor’s negotiations returned to haunt him when a new District Attorney announced his intention to move forward with Cosby’s lawsuit. At the Pennsylvania Supreme Court, the ruling sparked a lawsuit that would effectively violate Cosby’s constitutional rights. It was one thing for a new prosecutor to see the facts differently from his predecessor. But it was another for the DA’s office not to comply with statements that had prompted Cosby to give up his Fifth Amendment rights.

The Cosby case highlights how infrequent formal non-prosecution agreements are outside of corporate and white-collar contexts (which raise their own issues) and how they can often be unfairly distributed. We find it hard to think of no prosecution agreements for sexual assault and other serious or violent crimes, with the exception of course of Jeffrey Epstein, who received such an agreement on charges of sex trafficking from the former US Attorney and Secretary of Labor Alex Acosta. The vast majority of defendants in these and less serious cases – disproportionately low-income people and people of color – never get such an opportunity.

Prosecutors have the discretion to refuse prosecution, but How? ‘Or’ What the prosecutor transmits a variation of the charges as much as the nude made of a declination. The Cosby case further shows why prosecutors should be careful to document their refusal decisions in writing. Indeed, given the circumstances, we believe that Castor should have communicated his intentions to all parties involved before finalizing and commemorating such an agreement. If he had, we almost certainly wouldn’t be where we are today.

To his credit, Bruce Castor eventually informed the following prosecutor about his conversations with Cosby’s criminal lawyers. Had Castor do not issued a press release outlining his declination of charges, Cosby would likely have invoked his Fifth Amendment rights in civil proceedings. But Castor has done a huge disservice to his own office and to the public. The extent of the immunity he intended to confer – full “transactional” immunity for all related crimes or simply “use and derivative use” immunity for statements made by Cosby during of the civil case – remained uncertain, as did the nature of the conversations he had with him. Cosby’s lawyer. The public was unaware of Castor’s full intentions, as were the civilian attorneys representing Cosby’s victims.

Moreover, since none of this was written down (other than a very analyzed press release), the defendant remained entirely dependent on the prosecutor to inform subsequent prosecutors of what had happened. Cosby’s original defense attorney – the one who came to that deal (but not a deal!) With DA Castor – had died by the time the new DA relaunched the lawsuits. Imagine for a moment the accused in question was not someone as powerful or wealthy as Bill Cosby. Would we want any defendant to rely on the memory of a former prosecutor to find out what happened?

Worse yet, when the district attorney’s office does not act transparently, especially with historically under-prosecuted crimes such as sexual assault, it undermines its own legitimacy and the public’s trust in the justice system. criminal. Consider the concurring and dissenting opinion of Judge Kevin Dougherty, which was also joined by Chief Justice Max Baer. (Editor’s Note: Judge Max Baer has no connection with author Miriam Baer.) Judge Dougherty’s opinion speculates in a footnote that Castor’s decision may have been based on undisclosed abuse of power, given Castor’s ‘shifting’ explanations of what he intended to do . Admittedly, the opinion does not cite any specific evidence of a corrupt motive or arrangement. But the fact that two lawyers from the highest court in Pennsylvania publicly entertained such a thought is instructive. Opaque processes cause much more damage than a single lawsuit. They undermine the integrity and reliability of the prosecutor’s office and weaken the criminal justice system. The prosecution should learn the lessons of this episode, lest they fall into the same traps.

We should also be aware of the “facts” that led Castor to decline the lawsuits in the first place. In the court’s opinion, the main motivation behind Castor’s decision was not just that he thought a conviction would be difficult to secure – which may be true in many cases of acquaintance rape due to the lack of physical evidence and eyewitnesses – but also because he found Cosby’s accuser Andrea Constand “unbelievable” and “unreliable”. Even more problematic is a quote Castor allegedly made to the press at the time that while the state would charge people with “criminal conduct,” it would not accuse “people of making a mistake or ‘doing something stupid’. Statements like these illustrate the detrimental control of sexual assault prosecutions, especially for women seen as “imperfect” victims.

We strongly agree that prosecutors should refrain from pursuing cases where evidence is lacking. But there is no a good reason not to transparently document a prosecutor’s assurances of non-prosecution when such assurances are designed to induce an accused to waive his constitutional rights. Whether a prosecutor calls it an “deal” or not, he or she must create and maintain a clear record that explains what they are doing and why. Especially in prosecutions like this, she should seek the advice of her peers and affected victims and stakeholders. If she isn’t comfortable with this level of deliberation and transparency, she might want to ask herself why. Given the high stakes for defendants, victims and the public, the power to prosecute (whether to charge or not) can only serve the public good if it is exercised with care and transparency and documented in a consistent manner. and complete.

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