Cosby trial: Why judge dismissed ex-prosecutor's back room deal with actor

The focus of the first criminal case against Bill Cosby turns to a civil deposition given by the comedian after the judge rejected an informal non-prosecution agreement.

Mark Makela/Reuters
Actor and comedian Bill Cosby (c.) reacts while departing a hearing on sexual assault charges at the Montgomery County Courthouse in Norristown, Pa., Wednesday.

The evolving sexual assault case against Bill Cosby had hinged on a key question: Did a former suburban Philadelphia prosecutor’s assurance to the comedian that he would never be prosecuted a decade ago hold up?

On Wednesday, Montgomery County (Pa.) Judge Steven O’Neill said no, allowing the first criminal case against Mr. Cosby, who has been accused of sexual assault by dozens of women over decades, to move forward.

The judge declined to elaborate, but cited the credibility of witnesses called by the defense — including former Montgomery County District Attorney Bruce Castor — as a factor in his decision.

"There's no other witness to the promise," Judge O'Neill said during the hearing. “The rabbit is in the hat and you want me at this point to assume, 'Hey, the promise was made, judge. Accept that.' "

The judge’s move, which came at the end of a closely-watched two day hearing, represents a setback for Cosby, known for decades for his nice-guy image as “America’s Dad.”

O’Neill also rejected an attempt by Cosby’s lawyers to have newly-elected District Attorney Kevin Steele dismissed from the case. They argued he had made a “political football” out of prosecuting Cosby.

He was arrested in December and charged with drugging and assaulting Temple University athletic department employee Andrea Constant at his home in suburban Philadelphia in 2004, a charge that could carry up to 10 years in prison if he is convicted. He has not yet entered a plea.

Cosby’s lawyers had attempted to argue that the comedian couldn’t be prosecuted due to an agreement reached with Mr. Castor, the former prosecutor, in 2005, calling him as their key witness.

Castor testified that he felt the promise not to prosecute — made to Cosby’s former lawyer, who has since died — would be binding on future Montgomery County prosecutors.

The former prosecutor sparred with defense lawyers about several conflicting statements he had made on whether Cosby could be prosecuted and defended his decision.

"In this case, the prosecution should be stopped in its tracks," Cosby lawyer Chris Tayback argued. "Really what we're talking about here is honoring a commitment."

But they were not able to produce a written agreement, instead presenting a 2005 press release from the prosecutor that they said amounted to an agreement not to prosecute Cosby.

"A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn't right,” Mr. Steele said, arguing that since the deal wasn’t set down in a formal non-prosecution agreement it lacked legal force.

The focus now turns to a question about whether a deposition Cosby gave in a 2005 civil case filed by Ms. Constand can be used in the criminal case.

The deposition, which Cosby’s lawyers had fought to keep under wraps, includes startling admissions by the comedian, including that he had affairs with young models and actresses, obtained quaaludes to give to women he wanted to have sex with, and that he gave Constand three pills in the 2004 incident at his home. He said he reached into her pants, but argued it was consensual.

Cosby, who called himself “one of the greatest storytellers in the world,” in his deposition sat silently in court this week. A spokesman said his lawyers planned to appeal the judge’s decision. Prosecutors in Los Angeles County last month declined to charge Cosby in two alleged sexual assault cases from 1965 and 2008.

The next hearing to discuss evidence against Cosby in the Montgomery County case is scheduled for March 8.

"This is a significant step forward for victims of sexual violence," Karen Polesir, a leader of the Philadelphia arm of Survivors Network of those Abused by Priests, a group that advocates for victims of sexual assault, said of the judge’s decision, according to Reuters. “We hope this victory will encourage other prosecutors and police to pursue older rape cases.”

This report contains material from Reuters and The Associated Press.

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