As a former prosecutor, I can say unequivocally that it is legally possible to tie the hands of your successor via a legally binding agreement. I no longer prosecute but every sentence I negotiated is still in place. These deals were only cut because I was the prosecutor and my reputation at trial preceded me. If the prosecutor was another colleague, the result would not have been the same. If this is the standard, then if I viewed a case as weak and negotiated a time served sentence, should my successor be allowed to dig up the case, come up with a new strategy and go after the Defendant for the maximum sentence? No. That would be wrong…a deal is a deal.

The former DA found that the Cosby case was weak and would not survive the beyond a reasonable doubt standard that exists in criminal cases. So he thought well let’s get him in Civil court where the burden was lower. Cosby’s lawyers were smart to get the District Attorney to sign off on a non-prosecution agreement (yes, these agreements are real) in exchange for Cosby’s participation in the civil case. Is it fair for the current prosecutor to use the evidence from Cosby’s deposition to prosecute him over a decade later? The Supreme Court of Pennsylvania said no because it was inherently unfair. Cosby only agreed to participate in deposition because he thought he wouldn’t face prison. A successor should not be able to revoke the agreement made by their predecessor. It sucks but is this reasoning legally sound? Yes. Is he getting off on a technicality? Yes.

Concerning the testimony of the many witnesses who shared their personal experiences with Cosby, the Supreme Court of Pennsylvania found this testimony to be more disparaging than illuminating. The Court did not find that the testimony laid out a pattern of criminality. That finding in my opinion is entirely subjective. Nevertheless, I think it is important for practitioners to note the Court’s remarks and to learn best practices when putting on a case.

While this is a big blow to the “Me Too” movement, this was one battle that was lost but the war rages on. Let’s continue to fight for what is right.