Will 'deal' with prosecutor sink Cosby case?

Story highlights

  • A deal is a deal? Not always
  • That's a key consideration in deciding whether to dismiss the criminal charges, says Danny Cevallos

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)There's a chance the criminal case against Bill Cosby might not make it to trial.

Lawyers for the comedian have filed papers asking the court to dismiss the case outright, without ever proceeding to trial. In general, courts are loathe to deny the prosecution its day in court, but in this case, the prosecution might not get one.
The Cosby defense team's attack on the charges is two-pronged, based on two powerful but separate legal principles. The first is that the prosecution is currently violating a valid, enforceable agreement not to prosecute Cosby. That's what we're discussing here. The second is that the unreasonable delay in charging Cosby violates due process and the Constitution. That will be discussed in another column -- one that recognizes its equal importance.
As for the former Montgomery County District Attorney's promise not to prosecute Cosby in exchange for his deposition testimony?
A deal is a deal. And it seems that the terms of the verbal agreement were that if Cosby gave up his constitutional rights and gave deposition testimony in a civil case, there would not be a criminal case against him.
This is unfamiliar legal ground. Some say the "non-prosecution agreement" is unenforceable. As for me? It appears there was a valid non-prosecution agreement, or at least an enforceable promise not to prosecute. But, that doesn't mean that the court will dismiss the case.
The district attorney's office will argue that there was never any valid, binding non-prosecution agreement. It will claim that even if there were loose discussions about forgoing criminal charges, the non-prosecution agreement failed to comply with procedural criteria -- in other words, putting it in writing.

Was there really a valid agreement?

Overall, non-prosecution agreements are binding contracts, guided by general principles of contract law.
If the DA's office argues that there was never any agreement in the first place, then expect the defense to produce the then-district attorney, who apparently wrote e-mails to his successor, three months before Cosby was charged, describing the terms of this verbal agreement. A cautionary tale: this is why verbal contracts are jokingly said to not be worth the paper upon which they are written -- they may be valid, but how do you prove the terms?
The prosecution will argue that this prior agreement was not validly executed. Executed plea deals or non-prosecution agreements that are not put in writing are so rare, that most in the criminal justice system can't actually recall encountering one.
Of course, preliminary negotiations are often precariously casual, whispered in the courthouse hallways or at the prosecution table, before Her Honor takes the bench. But the final plea deal? It's almost always on paper, or on the record.
In the case of plea agreements, for example, even if a district attorney doesn't type up the terms, at minimum a judge will state the facts, terms, and conditions of the agreement for a stenographer. Even if a particular jurisdiction doesn't have specific rules about it, lawyers will tell you, it's one of those things that, well, everyone just... does. Every time.
If they are validly-executed, non-prosecution agreements will be enforced in criminal cases in Pennsylvania.
But even if there is no "validly executed" non-prosecution agreement, the DA's office can still be held to its promise, under an alternative legal theory called "estoppel."
When parties fail to form a legal contract, estoppel can operate to bind the parties. If a person changes his position to his own detriment, reasonably relying on the other party's promise, then a court may enforce that promise -- even if there was no contract.
Pennsylvania jurists have suggested that this doctrine may apply in criminal cases to agreements not to prosecute. In this case, if Cosby agreed to give deposition testimony in a civil case, he changed his position to his detriment; he would be giving up his right not to bear witness against himself, and he would expose himself to civil liability.
If he did so because he relied upon the former DA's promises that in return for this civil deposition, he would not be prosecuted, then, even if there is no formal agreement, the court should "estop" the government from denying its promise.

The court's 'easy out'

Courts are very reluctant to dismiss criminal charges in high-profile cases. To a judge, the safest choice is to let the parties fight it out in court and have the chips fall where they may.
If, at the upcoming hearing, the court determines there was a valid agreement or enforceable promise, the court should dismiss the case -- but it will try to find a less drastic alternative.
The Pennsylvania Supreme Court has suggested that even if the prosecution reneges on a deal, the court doesn't automatically have to bar the prosecution.
As a middle ground, a court might punt by simply throwing out the detrimental evidence that flowed from the promise of non-prosecution: like the deposition testimony itself.
Then, it's as if Cosby had never entered into the bizarre deal in the first place, and he can still be prosecuted.
Obviously, the defense would prefer the case be dismissed outright, but if the court only suppresses the evidence instead, doesn't that lead to the same result? After all, the current district attorney is basing this prosecution on the new evidence that flowed from the deposition. He essentially said this at a news conference and it's apparent from the charging documents themselves that the newly-unearthed deposition statements are an essential part of the case against Cosby.
Could the prosecution proceed without the deposition? Sure it could. After all, many assault cases are based on uncorroborated testimony of the complainant alone.
But just because the prosecution can proceed doesn't mean it should, or that it's a strong case for the government. If it does, and the deposition evidence is excluded, then this becomes a case that depends upon witness credibility from over a decade ago. And reasonable minds can -- and will -- differ on that issue.