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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 62 of 80

That is what happened in this case. There has been considerable debate over the
legal significance of District Attorney Castor’s publicly announced decision not to
prosecute Cosby in 2005. Before the trial court, the Superior Court, and now this Court,
the parties have vigorously disputed whether D.A. Castor and Cosby reached a binding
agreement, whether D.A. Castor extended an enforceable promise, or whether any act of
legal significance occurred at all. There is testimony in the record that could support any
of these conclusions. The trial court—the entity charged with sorting through those
facts—found that D.A. Castor made no agreement or overt promise.

Much of that debate, and the attendant factual conclusions, were based upon the
apparent absence of a formal agreement and former D.A. Castor’s various efforts to
defend and explain his actions ten years after the fact. As a reviewing court, we accept
the trial court’s conclusion that the district attorney’s decision was merely an exercise of
his charging discretion.24 As we assess whether that decision, and the surrounding

24 The dissent agrees—as do we —with the trial court’s conclusion that D.A. Castor’s
decision not to prosecute was, at its core, an exercise of the inherent charging discretion
vested in district attorneys. See D.O. at 1. But the dissent would simply end the analysis
there. In the dissent’s view, once a decision is deemed to fall within a prosecutor’s
discretion, that decision “in no way” can bind the actions of future elected prosecutors.
Respectfully, this perspective overlooks the verity that not all decisions are the same. As
to routine discretionary decisions, the dissent may be correct. But as we explain
throughout this opinion, what occurred here was anything but routine. Here, D.A. Castor’s
exercise of discretion was made deliberately to induce the deprivation of a fundamental
right. The typical decision to prosecute, or not to prosecute, is not made for the purpose
of extracting incriminating information from a suspect when there exists no other
mechanism to do so.

The dissent would amalgamate and confine all “present exercise[s] of prosecutorial
discretion” within a single, non-binding, unenforceable, and unreviewable category. Id.
We decline to endorse this blanket approach, as such decisions merit, and indeed require,
individualized evaluation. To rule otherwise would authorize, if not encourage,
prosecutors to choose temporarily not to prosecute, obtain incriminating evidence from
the suspect, and then reverse course with impunity. Due process necessarily requires
that court officials, particularly prosecutors, be held to a higher standard. This is
particularly so in circumstances where the prosecutor’s decision is crafted specifically to

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