Saturday, February 6, 2016

GateHouse: When prosecutors renege on promises

Matthew T. Mangino
GateHouse Media
February 5, 2016

What was at stake this week in Norristown, Pennsylvania, when Bill Cosby and his attorneys appeared in court to seek the dismissal of the criminal charges brought against him by the Montgomery County district attorney?

A lot more than the prosecution of a high profile defendant for a particularly salacious crime.

The hearing focused on the defense’s argument that the charges against Cosby violated an agreement struck in 2005 with then-Montgomery County District Attorney Bruce Castor. Cosby’s lawyers say Castor promised not to prosecute the comedian if he agreed to testify in an anticipated civil lawsuit by his accuser, Andrea Constand.

The underlying issue could have ripple effects for the entire criminal justice system. Can an accused rely on the promise of a prosecutor?

Castor was called as the first witness by Brian J. McMonagle, one of Cosby’s lawyers during this week’s hearing. Castor testified that, last year, he contacted then-District Attorney Risa Vetri Ferman to tell her to “tread carefully.” The media attention was intense at the time as the Cosby case became an issue in the Montgomery County district attorney’s race.

“I knew that I had bound the commonwealth, as representative of the sovereign, not to arrest Mr. Cosby . . . and I wanted to make sure that she didn’t make a mistake and go ahead and move against Cosby . . . ”

Why would the word of a respected former prosecutor be called into question?

Last year, the recently sworn-in district attorney Kevin Steele and Castor, a former district attorney, were running against each other. During the campaign Steele produced a commercial that challenged Castor for not filing charges against Cosby when Castor was district attorney in 2005.

Castor declined to prosecute Cosby for the sexual assault of Constand in 2005. At the time he explained, “[T]he District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.” He continued, “[m]uch exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”

Days before taking office Steele announced charges against Cosby. He suggested that new evidence unearthed in the years since Castor declined to prosecute Cosby had made the case viable once again.

Steele claimed the information derived from Cosby’s deposition was an important factor in his decision to file charges.

Prosecutors have argued the deal did not carry formal immunity without a judge’s approval under state law. In addition, they said Castor did not have the authority to make such an arrangement.

When asked why the agreement wasn’t memorialized in writing, Castor responded according The Legal Intelligencer, “he felt it was not appropriate at the time, since no civil case had yet been filed. He said it would be a suggestion that Cosby did something wrong, and that he wanted to use transactional immunity, which he said is a function of the district attorney.”

Anne Poulin, a law professor at Villanova University told Reuters she would be “shocked” if the judge found Castor had the power to “bind his office in perpetuity.” She was right Judge Steven O’Neil refused to dismiss charges against Cosby

But Poulin’s statement begs the question, if the DA can’t bind his office perpetually who can?

District attorneys are bound by agreements written or sealed with a handshake every day. For instances, the plea bargain, the grease that keeps the criminal justice system rolling, is based on an offer and acceptance--known in legal parlance as a contract. A defendant who relies on a contract to his detriment can force that contract to be honored.

Dolores Troiani, Constand’s lawyer, testified she did not need Castor to promise not to prosecute Cosby to get him to sit for a deposition. If he refused to testify she would have asked a judge to compel him. If he was compelled to testify it would have been with immunity--exactly what the prosecution successfully argued Cosby did not have.

Cosby was not compelled to testify. He did not invoke his Fifth Amendment right. Cosby voluntarily entered into an agreement, a contract, to testify in the civil case in exchange for not being prosecuted civilly.

Cosby had the right to refuse to sit for a deposition during the Constand lawsuit. If he testified in reliance on the prosecutor’s promise and now a new prosecutor intends to renege--that action can have a chilling effect on cooperating with law enforcement, testifying for the state and even negotiating pleas--the grease that keeps the system rolling.

Matthew T. Mangino is the former district attorney of Lawrence County, PA. He is of counsel with Luxenberg, Garbett, Kelly and George, PC in New Castle, PA. You can follow him on twitter at @MatthewTMangino.

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