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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 73 of 80 do just that, D.A. Castor made no attempt in 2005 or in any of the ten years that followed to remedy any misperception or to stop Cosby from openly and detrimentally relying upon that decision. In light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion comports with the principles of due process and fundamental fairness to which all aspects of our criminal justice system must adhere.2° Having identified a due process violation here, we must ascertain the remedy to which Cosby is entitled. We note at the outset that specific performance does not automatically apply in these circumstances. As a general rule, specific performance is reserved for remedying an injured party to a fully consummated agreement, such as an agreed-upon and executed plea bargain. Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993). “Specific performance’ is a traditional contract remedy that is available when monetary damages are inadequate.” Martinez, 147 A.3d at 532 (citing BLACK’s LAW DICTIONARY 1425 (8th ed. 2004) (defining “specific performance” as, inter alia, “a court- ordered remedy that requires precise fulfillment of a legal or contractual obligation when monetary damages are inappropriate or inadequate’”)). This does not mean that specific performance is unavailable entirely. It only means that the remedy does not naturally flow to someone under these circumstances as an automatic consequence of contract law. Specific performance is awarded only when equity and fundamental fairness command it. See Scotland, at 614 F.2d at 365 (stating that, if “the defendant detrimentally relies on the government’s promise, the resulting harm from this induced reliance implicates due process guarantees”); see also Commonwealth v. Mebane, 58 A.3d 1243 (Pa. Super. 2012) (upholding trial court ruling that fundamental 28 See Khan v. State Bd. of Auctioneer Exam'rs, 842 A.2d 936, 946 (Pa. 2004) (“Substantive due process is the esoteric concept interwoven within our judicial framework to guarantee fundamental fairness and substantial justice . . . .”) (cleaned up). [J-100-2020] - 72 DOJ-OGR-00004885