Veteran prosecutors, using such words as extraordinary and unusual, said they were puzzled by the promise by former Montgomery County District Attorney Bruce L. Castor Jr. never to prosecute comedian Bill Cosby.
Such deals rarely happen, the prosecutors said, simply because it is impossible to know what new information might emerge. And when the deals do emerge, they said, it is critical to get the agreement in writing.
Castor testified Tuesday at a hearing on the aggravated indecent-assault charge against Cosby that his 2005 announcement not to file criminal charges amounted to a pledge that his office, and his successors, had dropped the case forever. The agreement not to prosecute was never described in the announcement, nor was it made in writing.
On Wednesday, Common Pleas Court Judge Steven T. O'Neill, after a two-day hearing, ruled that the promise was not legally binding, and ordered that the criminal case proceed to a preliminary evidentiary hearing.
That was very much how veteran prosecutors felt about Castor's promise.
Thomas Bergstrom, a former assistant U.S. attorney and one of the city's most prominent criminal defense lawyers, said that in all of his career, both as a government prosecutor and as a defense lawyer, he had never been party to such an offer. And if an offer were made to one of his clients, he would insist on getting it in writing.
"Prosecutors by and large typically do not make agreements to not prosecute," Bergstrom said. "That is really extraordinary."
Philadelphia Bar chancellor Gaetan Alfano, a onetime prosecutor with the Philadelphia District Attorney's Office now in private practice, said prosecutors regularly grant immunity to witnesses, but typically in exchange for testimony in an ongoing criminal matter. Such agreements are in writing or described in open court, and must include a benefit to the public, he said.
Yet the agreement described by Castor seemed to benefit only Cosby, and not the public, Alfano said.
"I don't see anything in this that benefits his responsibilities as a prosecutor," Alfano said. "The reason you are exercising your discretion is that usually it is supported by some public consideration."
Absent some written agreement or court proceeding in which the deal is described, it would be hard, if not impossible, to expect successors to honor the arrangement.
"How do you bind your successor?" Alfano asked. "Suppose down the road Cosby stands up and says, 'I did it.' Would that mean they still couldn't prosecute?"
Ron Castille, a former Pennsylvania Supreme Court chief justice who for years served as Philadelphia district attorney, said he thought it likely there was a deal because Cosby gave a deposition in a civil case brought by Andrea Constand, the former Temple University employee who went to police with her allegation that Cosby had sexually assaulted her at his Cheltenham mansion in January 2004.
Cosby spoke at length about his relationship with Constand in that deposition, Castille noted. It is unlikely that his defense lawyer would have allowed that if he believed there was still the chance of a criminal prosecution."
"It should have been in writing," Castille said.
In his Feb. 17, 2005, announcement that he was declining to file criminal charges in the Constand case, Castor said there was "insufficient credible and admissible evidence . . . upon which any charge against Cosby could be sustained."
Constand told police that Cosby had invited her to his home to discuss her work as director of the Temple women's basketball program, and that while there he drugged her and sexually assaulted her.
Since then, dozens of women have come forward with accounts of similar encounters with Cosby. Some have offered to testify in the current criminal case, which was brought back to life after the disclosure of deposition testimony in which Cosby said he had given women sedative-type drugs in an effort to have sex with them.
Apart from immunity agreements, blanket commitments not to prosecute the onetime target of a probe are rarely given, criminal justice experts say.
"I would not have done that," former U.S. Attorney Peter Vaira said of the non-prosecution agreement described by Castor. "Years ago, sometimes prosecutors might have done that with a handshake, but not in my time. "
David Marston, also a former U.S. attorney in Philadelphia, said it was inexplicable that Castor decided to preclude any future prosecution based on a set of facts that might easily change.
"I just don't get it," Marston said. "What Castor seems to be saying is he wasn't convinced he could make a case and decided not to bring it. Well, that happens routinely with prosecutors. This is something entirely different. You don't know what might be revealed later that could make the case that much better."