My latest BK Live video discusses the upcoming hearing in Bill Cosby’s criminal case in Pennsylvania. Here’s the analysis I recently did for LawNewz.com on the same topic:
The hearing on February 2 in Bill Cosby’s criminal case in Pennsylvania may determine whether the case moves forward. That’s because Cosby asserts that he testified in 2005 and 2006 at a civil deposition only after then-District Attorney Bruce Castor promised not to prosecute him for an alleged sexual assault of Andrea Constand in 2004. Without that promise, he would have asserted his 5th Amendment right not to self-incriminate. Instead, he incriminated himself.
The Commonwealth of Pennsylvania says there was no such agreement. Last Wednesday, the prosecution filed a response to Cosby’s request to dismiss the case. That response includes a number of exhibits that help clarify what happened a decade ago but there are still unanswered questions. Here’s what we know—and what’s still to be answered.
Why is Cosby facing criminal charges?
Cosby allegedly drugged and sexually assaulted Andrea Constand in January 2004 in his home in Pennsylvania. Within a few months, Constand returned to Canada. She reported the incident a year later to Canadian authorities who then reported it to Pennsylvania police. In a February 17, 2005 press release, then-District Attorney Bruce Castor announced his decision not to prosecute and explained the reasons why. A civil case was then filed by Constand. The case settled in 2006 but only after Cosby testified, under oath, at a deposition.
On July 6, 2015, a federal judge released certain filings that contained portions of Cosby’s deposition at which he admitted giving women drugs and having sex with them though he says it was always consensual. Castor’s successor, District Attorney Risa Vetri Ferman reopened the investigation into Constand’s allegations days later—on July 10, 2015. The 12-year statute of limitations on the charge of indecent aggravated assault was due to expire in January 2016. On December 30, 2015, the Montgomery County District Attorney charged Cosby with indecent aggravated assault, a felony carrying up to 10 years in prison.
What is Cosby asserting?
On January 11, 2016, Cosby filed a petition for a writ of habeas corpus or, alternatively, to disqualify the Montgomery County District Attorney. Basically, he wants the criminal charge dismissed. He says his due process rights have been violated because there was a binding non-prosecution agreement in 2005. He relied on that agreement and testified at a civil deposition in 2005 and 2006, to his detriment. He would have asserted his 5th Amendment right against self-incrimination had there been no such agreement.
What does then-District Attorney Bruce Castor say?
Castor now says there was never an agreement not to prosecute. Rather, he says, the promise was not to use Cosby’s deposition testimony or any evidence derived from it. In other words, there had to be sufficient evidence to prosecute Andrea Constand’s alleged 2004 sexual assault, independent of Cosby’s testimony and leads from it.
What does the Montgomery County District Attorney say?
There was no agreement not to prosecute nor was there an agreement not to use Cosby’s deposition testimony or anything derived from it.
What is the evidence of an agreement?
On September 23, 2015, Castor alerted then-District Attorney Risa Vetri Ferman via email that, because of his agreement with Cosby, there could be a problem in the reopened investigation if the District Attorney was relying on Cosby’s deposition testimony.
On September 25, 2015, Ferman wrote a letter to Castor asking for evidence of the “written declaration” of this promise, as Castor had characterized it. Castor responded in an email the same day. He said the February 17, 2005 press release announcing his decision not to prosecute was the written evidence of the agreement not to use Cosby’s deposition testimony in a possible criminal prosecution. In the last paragraph of the press release, Castor discussed a potential civil case and said he would not expound further on the matter. He then wrote that he “cautions all parties to this matter that he will reconsider this decision should the need arise.”
What “decision” was Castor referring to? Was it his decision not to prosecute or his decision not to expound further on the decision not to prosecute. It’s not clear. Perhaps Castor can clarify this at next week’s hearing, assuming he testifies.
Who else knew about this alleged agreement?
According to Castor, the agreement was reached with the knowledge of Cosby’s criminal attorney, Walter Phillips (who died last February), and the civil attorneys. A civil suit was, indeed, filed a few weeks after the decision not to prosecute. In the September 23, 2015 email to then-District Attorney Ferman, Castor also wrote: “[W]ith the agreement of the defense lawyer and Andrea’s lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” He went on to say he dealt with Phillips and did not deal directly with Cosby’s civil attorneys.
Constand’s civil attorneys recently said they were unaware of an agreement. Last fall, Ferman told Castor in the September 25, 2015 letter, that the DA’s files include no evidence of an agreement nor can anyone recall it.
When was Constand’s civil suit filed?
Constand’s civil suit for sexual assault was initiated in the United States District Court for the Eastern District of Pennsylvania on March 8, 2005. It was not in existence at the time of the press release that Castor claims is the written declaration that he wouldn’t use Cosby’s sworn testimony at a civil deposition against him. Castor indicates, however, that a civil case was contemplated at the time he decided not to prosecute.
What questions remain?
It seems there should have been conversations with Cosby’s attorney before or after the February 17, 2005 press release that would have further clarified the agreement not to use Cosby’s testimony or any evidence gathered as a result of it. If so, Castor could testify to them at next week’s hearing.
It borders on malpractice for Cosby’s criminal attorney, Walter Phillips, not to have a clear, written agreement with the Montgomery County District Attorney laying out the terms. Why is there none?
If there were no agreement, why would Cosby testify and incriminate himself? That he did seems to be some evidence there was a deal; otherwise he was poorly advised by his attorney.
Who’s correct about how to interpret the existence of an agreement? The defense says the court needs to look at contract law. The prosecution says such an agreement is equivalent to derivative use immunity that, under Pennsylvania law, can only be conferred by order of a judge, and there was no such order.
What are the possible outcomes of next week’s hearing?
There are at least three possible outcomes of next week’s hearing but don’t expect an immediate decision. It could take some time for the judge to release it.
1. The judge could find that a binding non-prosecution agreement exists and dismiss the charges.
2. The judge could find that the agreement Castor recollects did exist which means the case goes forward but without Cosby’s deposition testimony and any evidence gathered as a result of it. The prosecution would have to rely on other evidence.
3. The judge could find that there was no agreement; that Cosby testified at his own risk; and that the prosecution can use his testimony.