On Wednesday, a judge in Montgomery County, Pennsylvania ruled that the case against Bill Cosby could proceed. Cosby’s lawyers had argued for two days during a pretrial hearing that a criminal case had been barred by a promise made in 2005 by then-District Attorney Bruce Castor never to prosecute the renowned entertainer. The judge on Wednesday ruled “there was no basis to grant the relief requested” by Cosby.
In a deposition Cosby gave as part of the civil suit, he admitted giving the woman, Andrea Constand, a pill but said all relations with her were consensual and accused her of lying about the assault. Prosecutors in Montgomery County reopened the case last year, claiming that new evidence came to light in July. Cosby posted bail of $1 million on December 30. Cosby’s legal team argued that violated a 2005 agreement that he would never be prosecuted over the allegation of assault made by Constand, a former employee of Temple University in Philadelphia.
If found guilty, Cosby — who has surrendered his passport to the court but has yet to enter a plea to the criminal charge — could face up to 10 years in prison and a $25,000 fine. Lawyer John “Jack” P. Schmitt, part of a legal team that represented Cosby in 2005, testified Wednesday it was clear to him that a 2005 news release from Castor — one announcing the prosecutor wouldn’t file charges against Cosby in connection with a woman’s allegations — was a written and irrevocable agreement that the comedian would never be prosecuted. Schmitt said, Cosby’s lead attorney in the Constand case, Walter Phillips, “got assurances from Mr. Castor that this was an irrevocable decision that he had made.” Phillips has since died.
On Tuesday, Castor testified he made the decision not to prosecute Cosby. He said he did so in part because he didn’t believe the case was strong enough for a conviction. Castor also said he thought the move might help Constand successfully sue the entertainer. He essentially conceded that the only reason Cosby testified in Constand’s subsequent 2005 civil suit — the testimony that new prosecutors are now using to charge him — was because he took any potential prosecution off the table. Castor said he warned his successor in 2015 — then-District Attorney Risa Vetri Ferman — that the case had been “put to rest.” Castor explained to Cosby’s defense team on Tuesday why he didn’t pursue charges:
- There were inconsistencies in Constand’s statements to police. “Within days, she changed the day when it happened from March back to January ’04.”
- Those inconsistencies “would affect her credibility at trial.”
- Constand contacted a civil lawyer before taking her allegations to police, which also hurt her credibility. Castor said that Cosby’s lawyer — Walter Phillips — told him that Constand and her mother were trying to get money from Cosby in exchange for not going to police.
- “Making Mr. Cosby pay money to Ms. Constand (through a civil suit) was the best I was going to be able to set the stage for.”
Steele, the new district attorney, has argued a non-prosecution agreement never existed, saying in legal filings his office has no such documentation and can’t find anyone who does. Cosby has yet to have his preliminary hearing and formal arraignment in the case. More than 50 women have publicly alleged sexual abuse by the pioneering black comedian, who attained his greatest fame for his role as a lovable obstetrician and family man in the hit 1980s sitcom “The Cosby Show.”