Many of us were surprised when it was reported that American comedian Bill Cosby was released from prison after winning his appeal at the Pennsylvania Supreme Court. Although the story broke over a month ago, it provides an interesting discussion as so many different legal issues were at play. Constitutional rights, contract law, ethics and attorney competency all have a place in the discussion, and I imagine this will be widely discussed in law schools across the country.
The short version of the factual and legal issues in the Pennsylvania case are as follows: Allegations of a sexual assault arose in 2006 regarding an incident in 2005. In 2006, then District Attorney Bruce Castor purportedly did not have enough evidence to prosecute the case, so he issued a press release stating that he would not prosecute Cosby for the allegations relating to the 2005 incident. The alleged victim of the 2005 incident commenced a civil lawsuit seeking damages and, during the civil litigation, Cosby gave sworn depositions — in which he made some relatively incriminating statements — knowing that he would not be criminally charged for the incident in question.
Fast forward 10 years. The current district attorney, Castor’s successor, decided to bring charges against Cosby for the 2005 incident. The prosecution resulted in a hung jury. The DA brought charges again but this time during the trial, the prosecutor submitted — and the trial court allowed — evidence of “prior bad acts” which included statements Cosby had made during the civil lawsuit. The second trial resulted in a guilty verdict and a prison sentence of 10 years. Cosby appealed the verdict based on the use of the depositions taken during the civil proceeding and his reliance that he would not be criminally prosecuted for the 2005 incident.
The Pennsylvania Supreme Court ruled Cosby’s reliance on Castor’s press release statements fall within the category of “promissory estoppel.” Promissory estoppel is a legal concept grounded in contract law. The aggrieved party must prove that: 1) the promisor acted in a manner that should have induced the other party into taking or not taking an action, 2) that the aggrieved party took such action, and 3) that an injustice would result if the assurance that induced the action was not enforced. Here, then-D.A. Castor acted in a way (issued a press release) to induce Cosby to waive his Fifth Amendment right to not incriminate himself (provide sworn statements through a deposition). Cosby completed the deposition(s) and arguably incriminated himself. Last, the court found that an injustice would indeed result if Castor’s promise was not enforced. The injustice was that the defendant was not afforded his constitutionally protected right against self-incrimination. The court found it was a violation of due process which is one of the longest-standing principles in the American justice system, originating from the Bill of Rights. In other words, Cosby essentially waived his right to “plead the fifth” because the D.A. promised that he would not be criminally prosecuted. Cosby was in fact prosecuted. Twice.
A non-prosecution agreement, or immunity agreement, in this context, is an agreement between a prosecutor and the accused that defines terms by which the prosecutor will not prosecute, perhaps in exchange for testimony in a criminal case against a different defendant. There is debate about whether a press release constitutes a non-prosecution agreement, or immunity agreement. The Pennsylvania court did not make a conclusion on the form of the agreement. Instead, the focus was on Cosby’s state of mind and that of his defense team, and whether it was reasonable for them to rely upon the information presented in the press release by the prosecutor. Cosby believed there was a deal and therefore waived his constitutional right to not incriminate himself. Those who believe that the Fifth Amendment and due process are important understand why the court opinion turned the way it did.
For many, this may be somewhat of an unpleasant outcome. One national news reporter remarked “We do not have a justice system in this county. We have a legal system.” Based on this court’s opinion, no further criminal charges can be brought against Cosby for the incident that occurred in 2005, even if the “prior bad acts” evidence and Cosby’s depositions are not introduced to a new jury. The alleged victim in this case has no further recourse. That said, this case provides an example of how the American justice system gives the benefit of the doubt to the accused because the accused might be innocent. The system is designed to protect the rights of all accused to keep the system fair. If we do not provide constitutional protections to the accused and due process of law, we risk the integrity of the justice system.
This case also provides an interesting look at non-prosecution agreements generally. In New York, there is no specific statute or regulation that governs these types of agreements of which I am aware. There is some case law on the subject. In sum, it appears these matters are fact specific (as legal matters tend to be), and there are various grounds in which written and oral non-prosecution agreements can be enforced, some basis found in contract law and some upon equitable grounds.
The New York Court of Appeals held in 1989 that an immunity agreement was not enforceable where a parent took his children on a summer vacation and would not return them pursuant to court-ordered parenting time. The parent called the prosecutor and promised to return the children so long as he would not be prosecuted. An assistant district attorney made the agreement, but the parent was arrested for custodial interference upon return and delivery of the children to the other parent. The court held that the agreement between the A.D.A. and parent was not enforceable because nothing was received from the parent other than the lawful return of the children pursuant to a court order. In other words, you can’t break a court order, then call the district attorney and state that you will comply with the court order so long as you are not prosecuted for breaking the court order.
A 2009 case before a New York lower court provides some insight as well, where there was a written immunity deal between John Doe and Andrew Cuomo, then New York attorney general. The extent of immunity and agreement terms came into dispute as John Doe argued that the written agreement did not reflect the same level of immunity as the earlier agreement, and that he had already relied upon his understanding of the earlier agreement and partially acted. The lower court cited contract law, stating that the language of the contract is to be read as a whole and given a reasonable interpretation.
With no specific requirements for a non-prosecution agreement (written or oral, terms or waivers allowed, timelines, etc.) when enforcement of an agreement becomes an issue, a court will rely on previous case law for guidance and interpretation. Whether the agreement be finalized by a handshake or a written contract, the final decision of enforceability and the terms of the agreement will be decided by a court if enforcement becomes an issue.
Susan Lettis is a lawyer in Oneonta.