Inside the Criminal Case: Immunity and Bill Cosby’s motion to dismiss

On Dec. 30, 2015, comedian Bill Cosby was charged with sexual assault in Pennsylvania. These charges stemmed in part from various admissions Mr. Cosby made in a deposition in a civil suit. After learning this news, several thousand criminal defense lawyers scratched their balding heads as they Monday morning quarterbacked the decision to submit Cosby to a deposition.

These backseat drivers asked “Why would Cosby’s lawyer allow his deposition to be taken?” “Why would he not just take the Fifth?” and “Was there a ‘rest of the story?’”

As it turned out, there was a “rest of the story.” Media reports indicate that Cosby had verbal assurances from the district attorney that his case would not be criminally prosecuted. Based on those assurances, the deposition went forward. Now that the case has been charged, Cosby has filed a motion to dismiss, stating that the above assurances created some sort of an immunity deal for him.

The question we pose is what would happen in Indiana under such a circumstance? Would such verbal assurance prevent prosecution of a defendant?

In Indiana, immunity is a creature of statute. See Indiana Code § 35-37-3-3. As a general concept, immunity consists of three varieties:

1. “transactional” immunity;

2. “use” immunity; and

3. “derivative use” immunity.

Wilson v. State, 988 N.E.2d 1211 (Ind. Ct. App. 2013).

“Use” immunity bars introducing a defendant’s compelled testimony against him or her in a subsequent criminal proceeding. Id. at 1219. “Derivative use” immunity prohibits using any other evidence obtained as a result of the compelled testimony. Id. “Transactional” immunity is the broadest form of immunity in that it prohibits the state from prosecuting the witness for any aspect for the transaction to which the witness testifies. Abner v. State, 479 N.E.2d 1254 (Ind. 1985). In Abner, the court determined Indiana’s statutory immunity regime did not permit a prosecutor to grant transactional immunity, so even if the prosecutor had done so, the agreement would be null and void.

Soon after Abner, however, the court clarified that prosecutors have the discretion to withhold prosecution, and that, once they made such an agreement, such promises are decidedly enforceable. Bowers, 500 N.E.2d 203 (Ind. 1986). In Bowers, the defendant was arrested for burglarizing a residence. Id. at 203. Bowers and a deputy prosecutor entered into an “oral agreement” that the state would not charge him in exchange for information that would lead to a search warrant for the property of a third party. Id. Bowers did so, yet the prosecutor filed burglary charges anyway. Id. Bowers filed a motion to dismiss, arguing that the state was bound by its prior assurance. Id. Relying upon the power of a prosecutor to reliably promise to withhold prosecution and the potential chilling effect on criminal investigations in the future, the court turned to contract law and determined that the case should be dismissed. Id. at 203-205.

Distinguishing from Abner, the court concluded that the state’s assurances to Bowers were not derived from statutory immunity, but a verbal assurance that must be enforced.

So in some circumstances, in Indiana, an oral assurance can prevent a prosecution from going forward. However, Bowers was based in contract law. The consideration in the Bowers case was the information the prosecutor received from Bowers. What would be the consideration in the Cosby matter? There are media reports that state that the district attorney did not believe he had sufficient evidence to pursue Cosby criminally, but his assurance of no prosecution would at least allow a deposition to go forward and gain some relief for the victim through the civil courts. It is difficult to tell whether that would suffice for Indiana courts to dismiss matter.

While the Monday morning quarterbacks had a point, it appears that Cosby’s civil lawyers had an eye on the criminal case during the deposition. Whether the assurances they received from the district attorney will prevent the criminal prosecution from going forward remains to be seen. In Indiana, the answer to whether the Cosby case could be prosecuted under these circumstances remains unclear. The same is likely true in Pennsylvania.•

James J. Bell and K. Michael Gaerte assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. Bell is an attorney with Paganelli Law Group; Gaerte is an attorney with Bingham Greenebaum Doll LLP. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.