In the wake of this case, Castor has insisted that he never entered into a nonprosecution agreement with Cosby; but as he was making that decision, he nonetheless informed Cosby’s attorney that he would issue a press release announcing his office’s intentions to forego prosecution and he spoke plainly with Cosby’s attorney about the pending civil proceeding that was on the horizon. Castor believed his definitive stance would ensure Cosby’s participation in subsequent civil proceedings. With criminal prosecution off the table, Cosby would have no cause to invoke his Fifth Amendment privilege against self-incrimination.
To a third-party observer, this arrangement certainly sounds like an agreement. But Castor declined to label it as such, and even worse, he failed to memorialize it in a manner that preserved the parties’ intentions. As a result, Castor’s negotiations came back to haunt him when a new district attorney announced her intention to move forward with Cosby’s prosecution. To the Pennsylvania Supreme Court, this decision set in motion the trial that would effectively violate Cosby’s constitutional rights. It was one thing for a new prosecutor to view the facts differently from her predecessor. But it was quite another for the DA’s office not to abide by the representations that had induced Cosby to relinquish his Fifth Amendment rights.