People across the country were shocked by the reversal in Bill Cosby's conviction for sexual assault. Cosby was released after several years in prison, leaving no victims or onedefendant. Although some people have criticised the Pennsylvania Supreme Courts decision we are in agreement with those who believe that Bruce Castor, former Montgomery County district Attorney, is to blame. We also agree with the lack of transparency and unequal distribution of nonprosecution agreements.Once again, the Cosby case shows that the prosecutor can be at her strongest when she declines her power to pursue criminal charges. Courts have repeatedly ruled that the decision of prosecutors not to prosecute a defendant can be reaffirmed by the courts. This means that we won't have the political process to limit nonprosecution decisions most of the times. If the prosecutor acts in darkness, the political process is meaningless.AdvertisementAdvertisementAdvertisementCastor maintained that he had never entered into a nonprosecution arrangement with Cosby. However, Castor informed Cosbys lawyer that he would issue an announcement announcing that his office intends to forgo prosecution. He also spoke openly with Cosbys lawyer about the civil proceeding that was pending. Castor believed that his final stance would guarantee Cosbys participation to any civil proceedings. Cosby wouldn't be able to invoke the Fifth Amendment privilege of self-incrimination if criminal charges were not on the table.This arrangement sounds very much like an agreement to a third party observer. Castor refused to call it such and, worse, he did not preserve the intentions of the parties. Castor's negotiations ended in a resounding slap when the new district attorney declared her intent to continue with Cosbys trial. This decision was interpreted by the Pennsylvania Supreme Court as a move that set the stage for the trial that would infringe Cosby's constitutional rights. A new prosecutor might view the facts differently than her predecessor. It was quite another for the DAs to not abide by the representations that had induced Cosby's Fifth Amendment rights to be rescinded.AdvertisementSubscribe to the Slatest Newsletter Get a daily email update with the latest stories. Signing you up was not possible due to an error Please try again. To use this form, please enable jаvascript. Email address: I would like to receive updates on Slate special offers. You agree to our Privacy Policy & Terms by signing up. Thank you for signing up! You can cancel your subscription at any time.The Cosby case demonstrates how rare formal nonprosecutions arrangements are outside of corporate and white-collar settings (which can raise their own issues) and how unevenly distributed they can be. It is difficult to imagine nonprosecution agreements for sexual violence and other serious crimes. Jeffrey Epstein was the exception. He received an agreement for sex trafficking charges from Alex Acosta, former U.S. attorney and Secretary of Labor. These and other less serious cases involving defendants who are disproportionately low-income or people of color rarely receive such an opportunity.Although prosecutors have the right to decline prosecution, the way the prosecutor communicates a declination is just as important as the fact that it has occurred. Further, the Cosby case shows that prosecutors need to be meticulous in documenting their declination decisions. Castor should, in our view, have communicated his intentions to all parties prior to finalizing and committing to such an agreement. We wouldn't be here today if Castor hadn't done this.AdvertisementBruce Castor, to his credit, advised the DA who was subsequently informed of his conversations with Cosbys' criminal attorneys. Castor did not issue a press release detailing his declination of the charges. Cosby would likely have invoked his Fifth Amendment rights during civil proceedings if Castor had not done so. Castor did his office and the public a disservice. Castor's intention to grant complete transactional immunity for all related criminal offenses or only use and derivative immunity for statements Cosby made in civil case remains unclear. Castor's true intentions were not known by the public, nor was the civil attorney representing Cosbys victims.AdvertisementFurthermore, the defendant was dependent on the prosecutor for any information regarding what transpired. The original defense attorney for Cosby, the one who came to an understanding (but not an arrangement). The original defense attorney for Cosby, DA Castorhad already died before the new DA revived prosecution. For a moment, imagine that the defendant in question was not as wealthy or powerful as Bill Cosby. Were we going to allow any defendant to use the memory of a former prosecutor to recall what happened?AdvertisementEven worse, the failure to act transparently by the district attorneys office, particularly in relation to crimes that were historically underprosecuted, like sexual assault, can undermine its legitimacy and reduce public trust in the criminal justice system. Take Justice Kevin Dougherty's concurring and dissident opinions, which were also joined by Chief justice Max Baer. Editor's Note: Judge Max Baer does not have any connection to Miriam Baer. Justice Doughertys opinion suggests in a footnote, that Castors decision could have been based on undisclosed power abuses, given Castors shifting explanations as to what he meant. The opinion does not cite any evidence that Castors decision was based on corrupt motives or deals. It is interesting to note that the Pennsylvania Supreme Court has two justices who have publicly considered such thoughts. Opaque proceedings do more harm than a single prosecution. They can undermine the integrity of the prosecutors office, as well as the trustworthiness and effectiveness of the criminal justice system. This episode should be a wake-up call for all prosecutors offices, so they don't fall into the same traps.AdvertisementIt is important to remember the facts that Castor chose not to be prosecuted. Castor's decision to decline prosecution was based on the court's opinion. This is not because Castor believed a conviction would prove difficult to win. This can also be true in acquaintance-rape cases where there is no physical evidence or eyewitnesses. However, Castor stated that Castor felt that it would be difficult to convict someone for sexual assault. These statements are particularly harmful for victims who are considered imperfect.AdvertisementWe are firm believers that prosecutors should not pursue cases in which there is no evidence. There is no reason to not transparently document any prosecutors assurances that nonprosecution will be given when they are intended to induce defendants to surrender their constitutional rights. It doesn't matter if a prosecutor calls it an arrangement, she should keep a clear record of what she did and why. She should also seek input from her peers, affected victims, and other stakeholders in cases like this. She might be uncomfortable with this level deliberation and transparency. Because of the stakes for victims and defendants, the prosecutorial power to charge or not to charge can only serve the public interest if it is transparently and carefully exercised, consistent, and well documented.
