Can Cosby’s claim that a press release is a legal contract hold water?

Bill Cosby’s upcoming hearing in Montgomery County has taken an odd turn into the world of contract law.

Cosby’s attorney say an old press release from the former Montgomery County District Attorney announcing that charges wouldn’t be filed against him should be treated like a binding contract, but new prosecutors say that’s “illogical.”

The 2005 press release from former District Attorney Bruce Caster about not pressing charges against Cosby is a binding agreement, Cosby’s attorneys argue. They say that the recent indecent assault charges show that prosecutors are “knowingly repudiating a binding non-prosecution agreement and trampling Mr. Cosby’s due process rights for political gain.”

Contract expert Tess Wilkinson-Ryan, a law professor at the University of Pennsylvania, says on a bare-bones level, the press release actually could be claimed as a contract. There was an offer and an acceptance. Sometimes a contract doesn’t have to be more formal than that. But did Cosby and the DA’s office intend it to be legally binding? She says that might be a hard argument to make.

“A press release is a weird way to do that, especially coming from a DA’s Office,” Wilkinson-Ryan said. “This strikes as a contract that would be problematic as a public policy matter.”

In other words, a DA’s Office can’t make a contract preventing future charges. “That’s not how DA offices operate,” she said.

Considering the argument Cosby’s attorneys are making, that the press release is an agreement and the new charges are violating that, Wilkinson-Ryan says she can imagine several creative approaches.

“One conceivable argument would say that the DA’s Office made a promise, it’s not a contract, per say, but it’s a promise that Bill Cosby relied on to his detriment, and justice requires enforcement,” she said. But would that prevail in court? Wilkinson-Ryan says it’s “extremely unlikely.”

New Montgomery County Prosecutor Kevin Steele says there’s one key phrase in the 2005 press release: that the decision will be reconsidered should the need arise.

And Steele says the new evidence against Cosby shows that the need has arisen.

But “it was not until July 2015, when the federal judge made the deposition testimony public — over defendant’s objection —that the need to re-investigate the case arose.”

A hearing date of Feb. 2 has been set in which both sides will offer arguments around whether t the press release being a contract, and other claims, will be presented in front of a judge.

Former DA Bruce Castor is expected to testify at the hearing.