Why Contract Law Requires Cosby Walk Free

Even if comedian Bill Cosby is convicted there is a strong chance his conviction will be overturned on appeal. While this author has no opinion as to whether Mr. Cosby did what he is accused of doing, the trial judge made a likely fatal legal error in this case, requiring the charges to be dismissed.

Bill Cosby testified in a civil deposition back in 2006, waiving his constitutional right to remain silent. Why did he do this? Former District Attorney Bruce Castor entered into a permanent non-prosecution agreement with Cosby in 2005 in order to try to help the accuser recover financially. Mr. Castor testified under oath pre-trial that such an agreement existed and was in fact permanent.

Despite this, the judge sided with the government’s argument that there was no agreement in writing and that only a judge can grant prosecution under state statute. However, with few exceptions, a contract does not have to be in writing to be enforceable. This is basic contract law. This law firm recently assisted on a trial where there was a contract dispute despite no written contract. Both the jury and the judge correctly found there was a valid enforceable agreement.

Furthermore state law cannot trump due process considerations. Back in 1972, in Santobello V. New York, the United States Supreme Court reasoned that when a criminal defendant waives constitutional rights in order to come to an agreement with the government, that agreement is enforceable as any other contract would be. They called it the “Constitutional Law of Contracts.” In Santobello, the government reneged on a sentencing promise after the defendant waived his right to a trial and entered a plea. The court reasoned that the same remedies for a broken contract apply.

In Santobello, the defendant was merely allowed to withdraw his plea. However for Cosby it is impossible to turn back the clock and pretend that testimony never occurred since for Cosby the cat is out of the bag and also he already settled that civil case. The only just remedy for a broken contract in this case is specific performance, which means forcing the parties to hold up their side of the bargain– ie enforcing the non-prosecution agreement.

If the Jury comes back not guilty, all of these legal issues will never be fleshed out. Regardless of what the jury decides, contract law requires Mr. Cosby’s case to be dismissed.

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