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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 52 of 80 Although former D.A. Castor stated that he intended permanently to bar prosecution of Cosby, he also testified that he sought to confer some form of transactional immunity. In his second email to D.A. Ferman, former district attorney Castor suggested that his intent in “signing off” on the press release was to assure Cosby that nothing that he said in a civil deposition could or would be used against him in a criminal prosecution. N.T., 2/2/2016, Exh. D-7. In the same email, he simultaneously expressed his belief that “a prosecution is not precluded.” /d. As such, the evidence suggests that D.A. Castor was motivated by conflicting aims when he decided not to prosecute Cosby. On one hand, the record demonstrates that D.A. Castor endeavored to forever preclude the Commonwealth from prosecuting Cosby if Cosby testified in the civil case. On the other hand, the record indicates that he sought to foreclose only the use in a subsequent criminal case of any testimony that Cosby gave in a civil suit. The trial court was left to resolve these seeming inconsistencies. The court concluded that Cosby and D.A. Castor did not enter into a formal immunity agreement. Because the record supports the trial court’s findings in this regard, we are bound by those conclusions. Pertinently, we are bound by the trial court’s determination that D.A. Castor’s actions amounted only to a unilateral exercise of prosecutorial discretion. This characterization is consistent with the former district attorney's insistence at the habeas hearing that what occurred between him and Cosby was not an agreement, a contract, or any kind of quid pro quo exchange. We are not, however, bound by the lower courts’ legal determinations that derive from those factual findings. Thus, the question becomes whether, and under what circumstances, a prosecutor’s exercise of his or her charging discretion binds future prosecutors’ exercise of the same discretion. This is a question of law. [J-100-2020] - 51 DOJ-OGR-00004864