Bruce Castor spoiled Cosby’s ease even worse than it looks.

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The reversal of Bill Cosby’s sexual assault conviction has shocked people across the country, and Cosby’s release after spending several years in prison has left no one — the defendants, the victims, or the public — in good service. While some have criticized the Pennsylvania Supreme Court’s decision, we agree with those who say the fault lies primarily with former Montgomery County District Attorney Bruce Castor and, more broadly, the uneven distribution and lack of transparency in non-prosecution agreements and prosecutorial decisions .

The Cosby case shows once again that the attorney general is at her strongest when she refuses to exercise her power to pursue criminal charges. Courts have repeatedly ruled that the attorney general’s decision not to prosecute the defendant is largely unreviewable. This means that most of the time, we will only have the political process to rely on to constrain non-prosecution decisions. But the political process doesn’t mean much if the attorney general works in the dark.

In the wake of the case, Castor insisted that he never entered into a non-prosecution agreement with Cosby; But while he was making that decision, he told Cosby’s attorney that he would be issuing a press release announcing his office’s intentions to drop prosecution and spoke clearly with Cosby’s attorney about the pending civil action that was looming. Castor believes his final position will ensure Cosby’s participation in subsequent civil proceedings. With criminal prosecution ruled out, Cosby would have no reason to invoke the Fifth Amendment’s privilege against self-incrimination.

To a third-party observer, this arrangement certainly seems like a deal. But Castor refused to classify it as such, and worse, failed to memorialize it in a way that preserves the parties’ intentions. As a result, Castor’s negotiations came back to haunt him when a new lawyer announced her intention to move forward with Cosby’s trial. For the Pennsylvania Supreme Court, this decision triggered a trial that would effectively infringe Cosby’s constitutional rights. The new plaintiff had to look at the facts differently from her predecessor. But it was so different from the DA’s non-compliance with representations that Cosby relinquished his Fifth Amendment rights.

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The Cosby case highlights how rare formal non-prosecution agreements are outside corporate and white-collar contexts (which raise their own issues), and how often they can be unfairly distributed. It’s hard to think of non-prosecution agreements for sexual assault and other serious or violent crimes—except, of course, for Jeffrey Epstein, who received such an agreement on sex trafficking charges from former US Attorney and Labor Secretary Alex Acosta. The vast majority of those accused in these and less serious cases – the disproportionately low-income and people of color – never get any such opportunity.

Prosecutors have the discretion to dismiss prosecution, but how the prosecutor moves to dismiss the charges is as important as the fact of the refusal. The Cosby case also shows why prosecutors should be careful when documenting disapproval decisions in writing. Indeed, given the circumstances, we believe Castor should have made his intentions clear to all affected parties before finalizing and saluting such an agreement. Had he done that, we would almost certainly not be where we are today.

To his credit, Bruce Castor eventually advised the subsequent DA in his conversations with Cosby’s criminal attorneys. Had Castor not released a press release describing his rejection of the charges, Cosby would likely have invoked his Fifth Amendment rights in civil proceedings. But Castor did his office and did great harm to the public. The scope of the immunity he intended to grant — complete “transactional” immunity for all related offenses or just “use and derivative use” immunity for statements Cosby made during the civil case — remained unclear, as did the nature of the conversations he had with Cosby’s attorney. The public was unaware of Castor’s full intentions, and neither were the civilian lawyers representing Cosby’s victims.

Furthermore, since none of this was in writing (other than a much-analysed press release), the defendant remained wholly dependent on the attorney general to subsequently inform the plaintiffs of what had happened. Cosby’s original defense attorney – the person who reached this understanding (but not an agreement!) with DA Castor – was dead by the time the new DA revived the claim. Imagine for a moment that the defendant was not someone as powerful or wealthy as Bill Cosby. Do we want any accused to rely on the former prosecutor’s memory of what happened?

Even worse, when the attorney general’s office fails to act in a transparent manner, particularly with regard to unprosecuted crimes such as sexual assault, it undermines its legitimacy and public confidence in the criminal justice system. Consider the opinion for and against of Justice Kevin Dougherty, who was also joined by Chief Justice Max Baer. (Editor’s note: Justice Max Baer has no relationship to author Miriam Baer.) Judge Dougherty’s opinion in a footnote speculates that Castor’s decision may have been based on unspoken abuses of power, given Castor’s “changing” interpretations of what he meant. The opinion certainly does not point to any specific evidence of a corrupt motive or bargain. But the fact that two jurists in Pennsylvania’s highest court have publicly heard such an idea is instructive. Opaque operations do much more harm than individual claim. It undermines the integrity and reliability of the prosecutor’s office and weakens the criminal justice system. Prosecution offices should learn from this incident, lest they fall into the same traps.

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We must also be cognizant of the “facts” that led to Castor’s refusal to sue in the first place. According to the court’s opinion, Castor’s decision was primarily motivated not only by his belief that it would be difficult to win a conviction – something that could be true in many cases of acquaintance-rape due to a lack of physical evidence and eyewitnesses – but also because Cosby’s accuser Andrea Kohn was deemed “unreliable.” and ‘untrustworthy’. Even more problematic is the quote Castor allegedly gave to the press at the time that while the state would accuse people of “criminal behaviour”, it would not accuse “people of doing something wrong or doing something foolish”. Such prejudicial statements by prosecutors illustrate the prevention of sexual assault, particularly for women who are considered “incomplete” victims.

We strongly agree that prosecutors should refrain from pursuing cases that lack evidence. But there is no good reason to fail to document transparently the attorney general’s guarantees of non-prosecution when those assurances are designed to induce a defendant to waive its constitutional rights. Whether the plaintiff calls it an “agreement” or not, she must create and maintain a crystal clear record of what she does and why. Particularly in prosecutions like these, she should seek input from her peers, aggrieved victims, and stakeholders. If you are not satisfied with this level of circulation and transparency, you may want to ask yourself why. Given the significant risks that defendants, victims and the public bear, the power of the prosecution – to charge or not to charge – can only serve the public interest if it is exercised carefully, transparently, and consistently and fully documented.

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