This whole Bill Cosby’s mysterious unwritten plea agreement slash non-prosecution agreement slash immunity promise slash missing scrolls saga is a very fascinating law school hypothetical.
There was some promise made to Cosby about not being prosecuted, as former prosecutor Bruce Castor has said and is expected to tell a court under oath. Apparently he promised Cosby that he won’t be prosecuted, so as to remove any possibility that Cosby would invoke his Fifth Amendment privilege during a deposition in civil trial. Had such a promise not been made, Cosby likely wouldn’t have testified, because he would have been put in a position of incriminating himself, something the Constitution prohibits.
But it wasn’t in writing. God knows why. There wasn’t a written immunity agreement; it apparently isn’t on record anywhere except in the minds of Castor and Cosby’s lawyers. Maybe they have it in their files.
But the existence of a verbal agreement between prosecutors and defense attorneys isn’t uncommon nor is the fact that it wasn’t memorialized fatal to his claim. It would’ve been cleaner and nicer to have it in writing, but the fact that a promise was made and immunity was granted – in some form or other that caused reliance on that immunity – is the key. If there was such an agreement and Cosby relied on that agreement, then contract law dictates that the agreement be upheld.
The question, of course, is why didn’t they just get it in writing? I don’t know. It is spectacularly stupid in hindsight and does create grounds for valid skepticism that such an agreement actually existed.
But lawyers don’t fabricate agreements in court filings [PDF] and those with whom the agreement was made also don’t support the existence of an agreement if there wasn’t something to it. If there was no such agreement, or no such understanding, how easy would it have been for Castor to say to the media: they’re nuts, there was no such promise.
Is this verbal agreement enough? Does immunity have to follow a very certain formal structure? Will we ever know why these idiot attorneys never got it in writing? No clue, but I bet many law students will grapple with these issues next semester.