DOJ-OGR-00004877.jpg

Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 65 of 80 When we review the statement in its full context, it is clear that, when D.A. Castor announced that he “will reconsider this decision should the need arise,” the decision to which he was referring was his decision not to comment publicly “on the details of his [charging] decision for fear that his opinions and analysis might be given undue weight by jurors in any contemplated civil action.” The entire paragraph addresses the district attorney’s concern that he might inadvertently taint a potential civil jury pool by making public remarks about the credibility of the likely parties in that highly anticipated case. Then-D.A. Castor expressly stated that he could change his mind on that decision only. Nothing in this paragraph pertains to his decision not to prosecute Cosby. The trial court’s conclusion is belied by a plain reading of the entire passage. Our inquiry does not end there. D.A. Castor’s press release, without more, does not necessarily create a due process entitlement. Rather, the due process implications arise because Cosby detrimentally relied upon the Commonwealth’s decision, which was the district attorney’s ultimate intent in issuing the press release. There was no evidence of record indicating that D.A. Castor intended anything other than to induce Cosby’s reliance. Indeed, the most patent and obvious evidence of Cosby’s reliance was his counseled decision to testify in four depositions in Constand’s civil case without ever invoking his Fifth Amendment rights. The Fifth Amendment to the United States Constitution, which is applicable to the States via incorporation though the Fourteenth Amendment, commands that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. The right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice. Malloy v. Hogan, 378 U.S. 1, 7 (1964). The privilege constitutes an essential restraint upon the power of the government, and stands as an indispensable rampart between that government and the governed. The Fifth [J-100-2020] - 64 DOJ-OGR-00004877