Legal Experts: Weigh in on the Cosby Criminal Case

Apparently the key issue in the Cosby criminal case at this early point is whether he was granted immunity from prosecution in exchange for being willing to testify in the civil suit against him. Former DA says Bill Cosby is shielded from prosecution

Apparently the judge has 3 options: 1) he can decide that the criminal trial procedes and admits the deposition evidence, 2) he can let the criminal trial proceed but exclude all evidence that resulted from the earlier immunity-induced deposition (which would severely hamper the prosecution), or 3) he can find the agreement to be binding and toss the presecution entirely.

I myself am not any sort of legal expert and don’t intend to take a position here, but since there are lawyers arguing both sides of the case I assume both are sustainable. (Though there is apparently a political undertone to the entire prosecution.)

So what do the experts at the SDMB think?

IANA legal expert, but it sounds pretty tough to disregard the immunity deal when the prosecutor who authorized it says it was valid.

What makes it a bit more complicated is that there’s apparently considerable uncertainty as to what the deal was (and even some as to whether it existed to begin with).

So (according to today’s testimony) it’s not like they had a negotiated deal. The DA assured Cosby there would be no prosecution and Cosby relied on that to his detriment (in giving the deposition).

I think it’s actually pretty simple. If there was an agreement or a “deal,” it should have been documented. As far as I can tell, not only was it not documented, nobody even said anything about it to anyone until recently, and even now, when talking about it, the prosecutor says things along the lines of “I decided not to bring charges.” Just looking around quickly, it seems that articles about it say that the prosecutor, at the time, announced that there wasn’t enough evidence to bring the charges. Well, so sure, he definitely decided not to bring charges. That’s not an enforceable agreement that no charges will ever be brought; it sounds more like he made an independent decision not to prosecute, whether or not he told Cosby that’s what he was going to decide.

It may or may not be the case that Cosby was nuts to testify. That’s not really proof of an enforceable agreement, though. It’s a fairly straightforward legal principle that if you want a court to enforce some kind of agreement in a criminal case, you better have something on paper.

Perhaps a legal expert can clarify this: I had the impression from somewhere that what counted was Cosby’s reasonable belief that he had immunity when he testified. I guess ‘reasonable’ has a lot of wiggle room, but I thought the idea was that prosecutor’s couldn’t use fine print in a deal to deny someone their 5th amendment rights.

Now based on the cites in post#3 this looks like an unholy mess. Wouldn’t the judge in the civil case have noted Cosby waiving his 5th amendment rights?

On another note, I did not understand the statement in USA today that Castor’s testimony was a mixed bag because he claims to want the prosecution to prevail:

I would have thought having a guy who wants you to lose delivering testimony that supports your case is better than having a guy who wants you to win offering that same testimony.

[Personally, I suspect that the main guy Castor wants to win is Castor himself. He needs to justify his decision to not prosecute Cosby when the story first came up (this was an issue in a recent election in which he ran). So he needs to present the case as being unwinnable, and he might be undermined a bit if Cosby is convicted this time around. So it’s in his interest both to undermine the prosecution and to claim to be opposed to Cosby.]

The problem is, if the judge allows the evidence to be admitted, then he’s basically guaranteeing that nobody will ever cooperate with an investigation again, because whatever promised the DA makes could be conveniently forgotten later. So, the next time the DEA wants to make a deal with some streetcorner pusher to take down his supplier, the low-level guy will tell them to stuff it, because he has every reason to believe that a few years from now someone else will go ahead and prosecute him anyway.

I know it is shocking…but some people actually will tell the truth…even in court…even if it means they don’t legally get what they want.

Some will and some won’t and some will shade things a bit.

But the point is that to the extent that his personal preference has any impact, it would tend to strengthen the credibility of his pro-Cosby testimony. (Beyond that, his personal sympathies would have no bearing at all.)

Why was he offered immunity in civil case?

“Sure, I’ll sign that agreement. Where is it?”

It’s not. It’s wise, of course, but not unioversally required.

See, Smith v. State, 70 SW 3d 848 (TX Ct Crim App 2002):

There were two issues in play in that case, and one of them was whether the fact that the immunity agreement was not in writing was fatal to the accused’s reliance. It was not.

A quick search didn’t find any other cases in the country, and for all I know there is some nuance of Pennsylvania law that makes this Texas case inapposite. I also found a Georgia case that lays out the rationale that an agreement by one prosecutor is binding on subsequent prosecutors, with the same caveat with respect to Pennsylvania law.

As a threshold matter, I don’t think immunity requires an agreement of any kind, because a witness can be immunized against his will and then compelled to testify, if he keeps resisting. The grant of immunity presumably should be documented, however.

But immunity is something that a prosecutor offers in order to secure a witness’s testimony against some other person in some criminal proceeding. That’s the only reason why a prosecutor would need to do so. Neither Castor nor Cosby’s defense team is saying that Castor gave Cosby immunity to obtain his testimony. Rather, the claim seems to be that Castor intended for his decision not to prosecute to constitute immunity – for no reason. Castor has nothing to do with the later civil suit. Rather, the fact that Cosby later testified in the separate civil case is only supposed to be evidence that he understood Castor’s decision not to prosecute to constitute immunity, because otherwise he would not have testified.

I am not a criminal attorney, but this all sounds like nonsense. Castor could have entered into a binding agreement with Cosby, but there is simply no reason to believe he did so, because he would have gotten nothing in return. Castor himself denies doing so. To all appearances, all Castor did was close his file. Jeopardy has not attached, and any subsequent prosecutor can come along, reopen the case, and file charges over the exact same conduct based on the exact same evidence.

Castor argues that his mere decision not to charge Cosby, in and of itself, had binding effect, but no sensible court is going to buy into that contention, because it would cripple the criminal justice system. Prosecutors make decisions not to charge all the time; indeed, the vast majority of what they investigate does not get charged. There can be all sorts of reasons why not: the evidence is weak, a key witness is absent, the harm appears minimal, or the staff is overwhelmed with bigger cases. But these cases always remain open to being revisited if the evidence improves (say, from a confession at a later civil deposition), the harm worsens, or the caseload lightens. Indeed, some network made a whole TV series out of cold cases. A court ruling that a mere decision not to prosecute forbids a prosecutor from ever reopening that file means that they not only have only one chance to try a person, they also only have one chance even just to investigate, and that’s too damaging to the whole process.

I don’t think Cosby’s supposed reliance upon his belief in immunity when he testified in the civil suit will amount to much, since it doesn’t seem at all reasonable to rely on a simple decision not to prosecute. Further, his current counsel has produced not only no evidence of an immunity agreement, but no direct evidence of Cosby’s belief in immunity back then. They seem to have found no correspondence with the civil plaintiff’s counsel about Cosby’s intentions as to his Fifth Amendment rights, and apparently no record in Cosby’s civil attorney’s files of any Fifth Amendment analysis or of him being counseled about immunity.

Not knowing anything about this judge, I may well be proven wrong, but I don’t see how Cosby has a leg to stand on here. I think the deposition testimony comes in.

I don’t quite agree.

According to Castor, he sought to induce Cosby to testify in Constand’s civil litigation, and because he had (in his view) an unwinnable criminal case, the best way to achieve some measure of justice for Constand was in the civil arena. By granting him transactional immunity by agreeing to not prosecute, denied Cosby the option to assert his Fifth Amendment protection against self-incrimination in response to a civil deposition.

Now, certainly the judge may find that isn’t exactly what happened. That’s a question of fact.

But if that IS what happened, then Cosby’s deposition testimony relied upon the existence of that grant of transactional immunity.

Now, I think the court, absent a written agreement, might be able to find that the grant was actually use immunity, since use immunity adequately confers Fifth Amendment protections. In other words, there are two issues in play: can he be prosecuted at all, and if he can, can the deposition testimony (and fruits therefrom) be used against him?

The claim of use immunity seems strong to me. The claim that transactional immunity exists seems weaker, although it turns on a finding of fact by the judge.

And, to echo the dissent in the case I mentioned above: *This case demonstrates the wisdom of a rule that all immunity agreements must be in writing, signed by the defendant, his counsel, the prosecutor, and the trial judge. *

The sense I’m getting, though, is that Castor never specifically said “I hereby grant you immunity” or anything to that effect. But rather, that he believed that under the law his decision to not prosecute was binding on “the sovereign” forever after, and thus had the same practical impact. And possibly the Cosby lawyers also made that assumption. And based on that, Cosby felt free to testify.

But that’s a legal question. Suppose the current judge feels that Castor was incorrect as a matter of law, and that both he and Cosby operated under an incorrect assumption that as a result of his decision Cosby was free to testify without fear of prosecution (or at least that his testimony couldn’t be used against him). Where does that leave Cosby? Does he get to say “I only testified because I was given to understand by the prosecutor that his decision was binding and permanent”, or is that his tough luck?

Who has the burden of proof as to the question of fact, and what’s the standard of proof?

The question the judge will have to then decide is: was Cosby’s understanding a reasonable (though ultimately wrong) reliance on the prosecutor’s representation? If it was, then the state may be estopped from using the testimony anyway.

If Cosby’s reliance was not reasonable, then his deposition testimony is almost certainly admissible against him.

Cosby’s team must prove the existence of an agreement, or their reliance on promissory estoppel, by preponderance of the evidence.

If I understand it correctly, this dispute has been decided in favor of the prosecution.

Looks like there never was an agreement. What’s up with the former prosecutor? Why did he go to court with this in the first place?

I’m not a lawyer but frankly I can’t believe Cosby’s lawyers didn’t demand an ironclad immunity agreement in writing.

You are forgetting the statute of limitations.