NORRISTOWN, Pa. — A suburban Philadelphia judge hopes to decide whether to dismiss a sexual assault case against actor Bill Cosby over an unwritten promise of immunity a former prosecutor says he gave Cosby’s now-deceased lawyer a decade ago.
Judge Steven T. O’Neill puzzled over the testimony of former Montgomery County District Attorney Bruce Castor on Tuesday and peppered him with questions as Castor wrapped up hours of testimony for the defense. The proceedings resume Wednesday morning.
Cosby, 78, was arrested and charged in December with drugging and violating former Temple University athletic department employee Andrea Constand at his suburban Philadelphia mansion in 2004. He could get up to 10 years in prison if convicted.
Castor said he found serious flaws in the case in 2005 and declined to bring charges. He said he steered the matter to civil court so Constand could become “a millionaire.” But he also maligned her credibility throughout the day and questioned whether she and her mother set out to extort Cosby.
“If there was an agreement, why didn’t you make that agreement in writing?” the judge asked Castor.
“It was unnecessary because I concluded there was no way the case would get any better,” he said.
Castor said if Cosby’s then-attorney, Walter Phillips, and other defense attorneys “wanted more than that to protect themselves, it was up to them to provide it.”
He said that he made the decision not to bring charges as a representative of the state — as “the sovereign,” as he put it, over and over — and that it would last in perpetuity.
“For all time, yes,” Castor said when pressed.
He said he had his top assistant, Risa Vetri Ferman, who later succeeded him and is now a county judge, tell Phillips that Cosby would not be charged. However, Castor said the two lawyers did not have “an agreement” that Cosby would testify in exchange for not being prosecuted.
Phillips died last year.
Castor suggested that Cosby and Phillips had the same understanding, because Cosby later agreed to testify without invoking his Fifth Amendment right against self-incrimination in a lawsuit brought against him by Constand.
“Cosby would’ve had to have been nuts to say those things if there was any chance he could’ve been prosecuted,” Castor said, referring to the damaging testimony from a deposition unsealed last summer.
The former DA said he “wanted there to be some measure of justice” for Constand. “I thought making Mr. Cosby pay money was the best I was going to be able to set the stage for.”
He added: “I was hopeful that I had made Ms. Constand a millionaire.”
Kevin Steele, the newly elected district attorney who is pursuing the case, has said Cosby would need an immunity agreement in writing to get the case thrown out. He said he has no evidence one exists.
In a barrage of allegations that have destroyed Cosby’s image as America’s Dad, dozens of women have accused the former TV star of drugging and sexually assaulting them since the 1960s. But this is the only case in which he has been charged.
The unsealing of the testimony from Constand’s lawsuit prompted Castor’s successors to reopen the case and ultimately charge Cosby.
Cosby admitted in the deposition that he had affairs with young models and actresses, that he obtained quaaludes to give to women he wanted to have sex with and that he gave Constand three pills at his home. He said he reached into her pants but insisted it was consensual.
Castor defended his decision not to bring charges, testifying that he saw Constand’s year-long delay in reporting the allegations, inconsistencies in her statements and her contact with a lawyer before going to police as problematic.
Castor said Constand’s delay was of “enormous significance” in his consideration of the case. He said it thwarted his ability to test her hair or fingernails for evidence she was drugged.
Still, Castor said, he investigated the case thoroughly because he wanted to show authorities in Constand’s native Canada that celebrities don’t get preferential treatment in America.
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