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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 62 of 80 That is what happened in this case. There has been considerable debate over the legal significance of District Attorney Castors publicly announced decision not to prosecute Cosby in 2005. Before the trial court, the Superior Court, and now this Court, the parties have vigorously disputed whether D.A. Castor and Cosby reached a binding agreement, whether D.A. Castor extended an enforceable promise, or whether any act of legal significance occurred at all. There is testimony in the record that could support any of these conclusions. The trial court—the entity charged with sorting through those facts—found that D.A. Castor made no agreement or overt promise. Much of that debate, and the attendant factual conclusions, were based upon the apparent absence of a formal agreement and former D.A. Castor’s various efforts to defend and explain his actions ten years after the fact. As a reviewing court, we accept the trial court’s conclusion that the district attorney's decision was merely an exercise of his charging discretion.24 As we assess whether that decision, and the surrounding me The dissent agrees—as do we —with the trial court’s conclusion that D.A. Castor’s decision not to prosecute was, at its core, an exercise of the inherent charging discretion vested in district attorneys. See D.O. at 1. But the dissent would simply end the analysis there. In the dissent’s view, once a decision is deemed to fall within a prosecutor’s discretion, that decision “in no way” can bind the actions of future elected prosecutors. Respectfully, this perspective overlooks the verity that not all decisions are the same. As to routine discretionary decisions, the dissent may be correct. But as we explain throughout this opinion, what occurred here was anything but routine. Here, D.A. Castor’s exercise of discretion was made deliberately to induce the deprivation of a fundamental right. The typical decision to prosecute, or not to prosecute, is not made for the purpose of extracting incriminating information from a suspect when there exists no other mechanism to do so. The dissent would amalgamate and confine all “present exercise[s] of prosecutorial discretion” within a single, non-binding, unenforceable, and unreviewable category. /d. We decline to endorse this blanket approach, as such decisions merit, and indeed require, individualized evaluation. To rule otherwise would authorize, if not encourage, prosecutors to choose temporarily not to prosecute, obtain incriminating evidence from the suspect, and then reverse course with impunity. Due process necessarily requires that court officials, particularly prosecutors, be held to a higher standard. This is particularly so in circumstances where the prosecutor’s decision is crafted specifically to [J-100-2020] - 61 DOJ-OGR-00004874