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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 76 of 80

otherwise cooperating with the government to his detriment, due process requires that the prosecutor’s promise be fulfilled). In light of the extent and duration of Cosby’s reliance, induced as intended by then-District Attorney Castor, no other remedy will do. Anything less under these circumstances would permit the Commonwealth to extract incriminating evidence from a defendant who relies upon the elected prosecutor’s words, actions, and intent, and then use that evidence against that defendant with impunity.

The circumstances before us here are rare, if not entirely unique. While this controversy shares some features of earlier cases that contemplate the constitutional role of prosecutors, that import contract principles into the criminal law, and that address the binding nature of prosecutorial promises in plea agreements and in other situations—as well as breaches of those promises—there are no precedents directly on point that would make the remedy question an easy one. As the concurring and dissenting opinion (“CDO”) observes, the circumstances of this case present a “constellation of . . . unusual conditions.”29 It is not at all surprising, then, that a reasonable disagreement arises regarding the remedy that must be afforded for what we and the CDO agree was a violation of Cosby’s due process rights.

In our respectful judgment, the CDO’s proposed remedy, a third criminal trial of Cosby—albeit one without his deposition testimony—falls short of the relief necessary to remedy the constitutional violation. Specific performance is rarely warranted, and should be imposed only when fairness and equity demand it. As the CDO notes, such a remedy generally should be afforded only under “drastic circumstances where the defendant detrimentally relies on an inducement and cannot be returned to the status quo ante.”30

29 See CDO at 4.
30 Id. at 9.

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