Below are my logs from court today. They’re rough so forgive the spelling errors but you’ll get a sense of the day’s testimony from the one and only witness: Bruce Castor. The hearing continues tomorrow. I suspect that the judge won’t dismiss the case but I could be wrong. He plans to decide the matter tomorrow.
BC = Bruce Castor (former DA; didn’t charge Cosby in 2005; ran against Steele last fall)
BM = Cosby’s attorney, Brian McMonagle
PA = Pennsylvania!
AC = Andrea Constand (the accuser)
KS = Kevin Steele (new DA; just elected last fall)
Risa Ferman = DA between Castor and Steele; elected judge as of this year
ADA who cross examined Castor is ADA Ryan. Not sure of full name.
There was a lot of discussion today (mainly in the afternoon) about the Feb. 17, 2005 press release, Sept 23 and 25, 2015 emails by Castor and the Sept 25 letter by Ferman to Castor. I linked them within the notes below.
Montgomery County Courthouse
Judge Steven T. O’Neill
Microphone is on before court starts. Can hear Cosby talking but can’t make out the words.
9:35 Lawyers come out of chambers.
9:40 Still waiting.
9:43 Judge takes the bench.
Judge thanks the press for abiding by the decorum order. Brief prehearing conference with counsel to get an idea how to proceed this morning. The judge had limited today’s hearing to the issue of whether there was a valid nonprosecution agreement. That will determine if the case goes forward to prelim or be dismissed. Judge will NOT handle the motion to dismiss the DA. State opposes the court handling a habeas first before the prelim. Judge allows Steele to make a record as to this issue.
9:46 KS: This motion is premature. Cites PA v. Cosgrove, 680 A2d 1993 (??). Rules of criminal procedure outline how to proceed.
Judge tells attorneys to use the microphone. Judge reviewed Cosgrove—an AG case regarding the right to prosecute.
BM: Cites another case? We believe it’s fair that the time to determine existence of agreement is now, not later. (Case is Alt?? and progeny that he relies on.)
J: Right to habeas corpus is guaranteed to citizens. I see no prejudice in going forward today. Commonwealth’s motion is denied.
I have read the initial motion, PA’s lengthy response. Ready to hear arguments.
Defense calls Bruce Castor (witness #1)
9:51 Castor sworn.
BM does the direct. Judge interrupts a lot to get the courtroom situated.
Member of the bar for 30 years. Joined DA’s office June 1, 1985 but County thinks it’s June 3, 1985.
Goes through his work at the DA’s office. Appointed as intern in sex crimes unit and wrote briefs in appellate division in Dec. 1984. In his third year of law school and in summers/vacations, worked in sex crimes and appellate dept.
May 1986 appointed. Worked as an intern until he passed the bar. Sept. 2, 1986 started full time. Moved into trial division.
Was involved in major crimes and sexual assault cases. Captain of Major Crimes July 1988 to Sept 1991. Then head of trial division.
Spring 1993, first assistant Carpenter became a judge. DA Marino gave Castor the title as acting first asst DA. Once Carpenter was confirmed by the senate, Castor became first asst DA, not acting. This is 1993.
Sworn as DA in Jan. 2000 (first week). Served two terms/8 years. In 2007, decided not to run for reelection. Then became a county commissioner.
BM puts document on the screen (his CV?) but Castor says he doesn’t recognize it!
In 1990, Chamber of Commerce Man of the Year in LE
Goes through more awards. 1st place in the country for investigating and prosecuting homicide cases (award by US AG)
Goes through more citations. SuperLawyer 10 or 11 times (4 while DA). Rated by Martindale-Hubbell, AV is 5. Highest #.
Still prosecutes cases—is arguing a case tomorrow as as ADA in Centre County. Jan. 2015, a scandal broke in Centre County that caused the DA to have to defend herself and her office against allegations they were too friendly with members of the bench. That office asked me to prosecute some cases based on this which I did. One of the appeals is tomorrow.
10:08 ******Investigated allegations by AC in 2005. Procedure then was the same as it is now. He appointed Risa Ferman (first asst da) to supervise along with 2 detectives.
Complainant complained to LE officers in Canada. Canadian authorities (maybe Toronto?) referred it to Philadelphia thinking Temple was there. They referred it to Cheltenham PD who referred to us for help.
*****There was no prompt complaint in this case made by AC.
It was almost exactly a year before a complaint was made. It was of enormous significance to me. PA grants prosecutors the license to argue that the credibility of witnesses is enhanced if they complain promptly. She was in her 30s; an adult. When something bad happens to a person and the person considers self victimized, the law recognizes that if they go to the police and tell them, we can utilize that. We can argue no one would put themselves in that position unless it really happened. Extremely important especially when there’s no forensic evidence.
Second component is that the passage of time affects the ability to collect trace evidence—hairs, fibers, DNA, etc. The longer the time, the less likely it will be found.
In sex crimes, the trace evidence disappears when the person takes a shower though it’s possible in some cases to get trace evidence within a month. (Hair can show traces of drugs. Same with fingernails.)
Had AC contacted civil attorneys before contacting the police? Objection—not relevant to this hearing. BM argues that Castor’s credibility has been challenged. The investigation and why BC made this decision is of paramount importance. Judge finds it relevant.
(State is NOT happy with BM’s direct examination of Castor.)
Castor wanted to be as thorough as possible. Assigned the best people to the case and BC took an active role. We owed it to Canada to show that in America we will investigate celebrities.
Ex. 3 – lots of colloquy about handling and publishing of exhibits. Shown to Castor. What is it? Initial report taken by Canadian police. BC relied on it—at least partially. BM wants to publish it but PA objects.
J: How did you get it? Ans: It was discovery in the civil litigation. J: He can look on it and say he relied on it.
PA: No problem with using it to refresh his recollection.
J: Not relevant to publish it or for the court to rely on all this. OK to show him the documents, ask him if he relied on them. But not necessary to publish. Sustained objection as to publication.
BM: Had AC contacted civil attorneys before making the complaint?
BC: AC told Canadian police that she had spoken with a PA civil attorney before reporting to the police. This was a piece I relied on: lack of prompt complaint (no forensics), and contacting a civil attorney.
AC gave more than one interview. What she said in each one was part of his decision –making.
BM asks a question about her interviews. BC suggests to J that he answer in camera.
10:35 Back to chambers (just the defense attorney and Castor). 10-minute recess
10:53 J. makes a record that Castor asked to go in camera. J asked the attorney to find another way…
10:54 BC had to examine the various interviews given by AC. He did that in 2005. Draw conclusions? Yes. Was there any difficulties with those statements as to whether to use in a prosecution? Yes—there were at least 3. To Canada police, to Cheltenham police and to county detectives/Cheltenham (maybe just 2).
BC: A # of inconsistencies AC gave caused me concern. These inconsistencies on material points would affect her credibility at trial.
Judge does not want to hear what the inconsistencies were. Not necessary for the issue at the hearing.
Evaluated interview of Cosby in determining if there would be a prosecution. They searched Cosby’s PA and NY homes. The searches were a factor in his decision. Interviewed AC again and relied on it in making the decision. In that final interview, there were inconsistencies.
Castor spoke with Cosby’s counsel—Walter M. Phillips, Jr.—a renowned SE PA criminal defense attorney. Had great respect for him. WP made an appt to see me. He asked me to review certain possible evidence in the case. What was it? Objection. Phillips told Castor that during the year period, Cosby and AC had multiple contacts, some in person and quite a few over the telephone. Records would support. He suspected there were wiretaps by non-law enforcement personnel that he believed were efforts to obtain incriminating recordings of Cosby. He said there were two types of records. First set was a series of continuous banter back and forth between two friends. He said we recovered wiretaps from non-law enforcement personnel, we’d find that AC and her mother were trying to get money from Cosby. If he paid, they would not go to police.
In my mind, there was no chance that WP was lying to me about the existence of records. Highly respected, former DA.
I had no doubt I would find the records but wouldn’t necessarily conclude what WP said. Told investigators to find the records. There WERE records. I remember thinking there was an inordinate amount of contact. We were able to confirm face to face meetings between the two after the alleged incident. I was made aware from the detectives of at least two wire interceptions (hard wires) that would require court approval, and that the information contained in them could be construed as incriminating if I wanted to make them part of the evidence. I had a great deal of experience with wiretaps from the office.
Concerned about what law would be applied if we used them. Neither party in PA at the time, both did not give consent. PA is a 2-party consent state. Cases in PA say the wiretap law is to be construed strictly against PA. The people who had done those recordings would have engaged in felonious behavior under PA law. PA law does not allow us to use illegally obtained wires.
Took steps also to look at other allegations as they related to Cosby. The publicity then as now was worldwide. Some people came forward and said Cosby had done similar things to them that he allegedly did to AC.
Asked Ferman to look into them. All of the allegations we had as of Feb. 2005 were decades old and were never reported to the police. This is an area of interest to me at the time because Mont County had a DP case reversed on common scheme or plan. (PA v. Thomas Hawkins) Sixteen years between the murders. Two murders 16 years apart lined up almost perfectly. PA Supreme Court reversed it though trial judge allowed it. I determined that the other crimes would not be admissible (prob v. prejudicial) because too remote in time. I thought the court would not allow it.
I decided there was insufficient, credible evidence against Cosby such that the charges could not be proven beyond a reasonable doubt.
My hope was to keep the case open and hope it got better or close it definitively and allow AC to proceed civilly.
I did not think that the case could ever get better. The passage of time made collection of forensic evience impossible, AC made multiple inconsistent statemets and the subsequent behavior was inconsistent with a sexual assault victim.
Her actions of going to a lawyer before the police had created a credibility problem that could never be repaired.
Because of the international publicity, we got very old statements that I could possibly have used as common scheme or plan but none of them had gone to the police. Not reporting to the police ever until they heard about this led me to conclude that common scheme or plan was never going to get better. I concluded there was no way the case would get better with time absent Cosby’s confession. I thought it was better to make a determination that Cosby would never be arrested. While defense attorneys are to vigorously defend, prosecutors are administers of justice. I did not believe it was just to go forward with a criminal prosecution but I wanted there to be justice. As the sovereign, I decided that we would not prosecute Mr. Cosby but that would set off a chain of events that would bring some justice to Andrea Constand.
5th Am—cannot compel someone to bear witness against themselves. The way to remove that right from a witness… I made the decision that Cosby would not be prosecuted no matter what. As a matter of law, that meant he could not take the 5th Amendment ever. The word “agreement” is wrong. I told WP that because of defects, the case could not be won, and that I was making a statement as the sovereign, and that in my legal opinion, Cosby would not be allowed to take the 5th.
WP agreed with me that that was the law of PA and of the US and that if Cosby was subpoenaed, he’d have to testify. But those two things were not connected.
WP—a lawyer with vastly more experience than me at that time—agreed with my assessment. WP said he would communicate that to AC’s lawyers in the pending civil suit.
His decision was for all time—that there would be no prosecution and that Cosby couldn’t assert the 5th.
Did you take steps to create a formal document? WP never agreed to do anything in exchange for Cosby not taking the 5th. Neither of us thought it was that hard a concept to understand. Once the possibility of a criminal prosecution is gone, the possibility of not taking the 5th is gone too.
Castor told WP and Ferman. He directed Ferman to contact Constand’s lawyers and tell them that Cosby was not going to be prosecuted. Ferman said she knew one of the lawyers from school. I wanted to create the conditions such that Cosby would never be allowed to assert the 5th. I thought then and still do, that making Cosby pay AC some money was the best that she would do.
He issued a press release.
11:28 10-minute break. Will break at 12:30.
Couldn’t hear the question.
Shown the press release from Feb. 17, 2005. Ordinarily he would not author a press release but he wrote this one. He did not know how to attach a document to email in 2005. He was faxing it.
Took Castor several hours to prepare the press release. I was writing this for 3 audiences: for the media who would transmit it to the world, the greater legal community who would attach meaning to every word and sentence, and the litigants to let them know that I did not want the case tried in the press anymore. I wanted them to go into civil court and resolve their differences. It was a warning to the litigants that if they did not heed my advice to stop making public pronouncements, then I would call the national media to my office to explain why I didn’t prosecute.
I decided I wanted Cosby punished in civil court. I did not want jury pool to hear that I had serious concerns about Constand’s credibility. Did not want that out there.
There’s a page missing from the press release that includes the office website for the facts. The time stamp on the press release was 5:45 p.m.
Goes through the press release. BM is asking questions about particular statements.
The scales of justice tumbled way down in favor of Cosby and against Constand. Included a paragraph that everyone cooperated with the police. Castor didn’t want to adversely affect Constand in the civil case.
Paragraph 4 of press release—the code words for lawyers and litigants was “first hand knowledge.” Referenced phone records—I knew the litigants were aware of the significance of this but that the press would gloss over it (and they did).
Used nebulous term “and other items that might have evidentiary value” instead of reference to the illegal wiretaps by AC and her mother. Didn’t want prospective jurors to think AC was a bad person and hold it against her.
Last line in that paragraph is a reference to the other women but that no one had reported to law enforcement. The best way to enhance their probative value would be if there had been reports to police.
To the masses who would read the media accounts, it would look as though he considered the past allegations. To litigants, the message was that the info couldn’t come in.
Next to last paragraph: BM reads it aloud.
Last paragraph: BM reads aloud (about the civil case).
I didn’t want AC to be vilified publicly which was a risk if public knew he thought she compromised her credibility. Also, he didn’t want to dissuade other victims from coming forward.
The phrase that he would reconsider—what did that mean? I was telling WP and AC’s lawyers that if they criticized the decision not to prosecute, he would tell the media that AC’s own behavior ruined the case.
Next to last line—I was speaking directly to the litigants. “Much exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”
He was telling both sides to keep their mouths shut.
Castor believed that one of the attorneys on Constand’s side was trying to influence him through extrajudicial comments and I didn’t like that.
I created a situation for AC where she could get Cosby’s testimony and all the extra stuff but that is all I was going to do.
Saw that the civil suit was brought. I had no doubt that it would be. I had operated with certainty that a civil suit was coming. I set up the dominoes that would require that Cosby testify.
I read the complaint—a civil complaint is written in the light most favorable to the complainant—what hope to prove. I remember smiling to myself that if I could have proven all those things, Cosby would have handcuffs on him right now.
This was so unusual for me to write the press release that I don’t recall if we signed all press releases. I signed this one to be certain that this was the decision of the sovereign.
BM: At any point from 2/17/05 until you left, did you take any steps to assist the civil case?
Castor: No. I directed the office provide discovery as it was requested. But the criinal case was dead because of my decision that Cosby would never be prosecuted.
Risa Ferman becomes DA in 2009. To his knowledge, Ferman did nothing regarding the case in the years after she took office.
Constand filed suit. Cosby testified. Matter was resolved. I was hopeful that I had made AC a millionaire.
Summer of 2015. What happened? Three times the national media descended on me without warning.
Nov. 2014—joke comes out from a comedian. He spent a few days explaining to the media what the case was.
Summer of 2015—information was released and he was drawn into the maelstrom of the Cosby case. A federal district court judge released or unsealed some of the deposition testimony that Cosby gave in 2005. There were incriminating statements made that could have been used in a criminal prosecution had we had those documents in 2005.
DA’s office did not consult with me in the Cosby case. I didn’t know what they were doing. But it was reported in the newspapers that, as a result of unsealing the depo, the criminal case as it relates to AC was reopened. I never actually learned it was reopened until he was arrested. I learned about speculation that he might be arrested imminently.
I knew that I had bound the Commonwealth not to arrest Cosby. Ferman was running for judge. I wanted to make sure she didn’t make a mistake. It could affect her election.
I wrote her an email from Sept. 2015 to tread carefully; that she was exposing the county to civil liability because of my decision in 2005 not to prosecute. I went into some detail so she would have it on record.
Refers to his Sept. 23, 2015 email to Risa. Goes through it… reads aloud the first hald of second paragraph.
That’s not an agreement; it’s a statement by me that he would not be prosecuted and it removed Cosby’s ability to take the 5th.
12:27 *******Cosby had to be nuts to say those things if he thought he could be prosecuted.******
I wanted to call Wally to ask about the reports that Cosby’s arrest was imminent. I wanted to ask if I had done something wrong. I googled his name and his obituary came up. I felt bad; I liked Wally.
12:29 LUNCH for one hour.
1:38 Judge is on the bench. There was a brief conference to discuss if it’ll be necessary to go over to tomorrow. Judge is clearing his schedule but now doesn’t appear necessary.
Direct to resume with Castor.
Castor read in the papers that Cosby’s arrest was imminent. That’s why he wrote to Ferman. She sent him a letter on Sept. 25. Shown to BC. She asks him for evidence of the written declaration not to prosecute Cosby as suggested by a newspaper article that came out between Sept. 23 and 25. The article created the impression that there was another writing. I asked the reporter to clarify that but I don’t know if that ever happened. Ferman also references his email in her letter.
Shown his email to Ferman dated Sept. 25. (Pause as he reviews it.) Yes—this was a response to her. She was referring specifically to the reference in the newspaper article and Ferman wanted to know what it was. The reporter had been confused. It was actually the press release that I had signed.
Also on Sept. 25, a couple of minutes after he sent the previous one, I recollected something from WPhillips. I wasn’t sure it was important but I sent it along anyway. I sensed Ferman was looking for writings that would help her decide what to do. WP had said the decision not to prosecute was “baked into” the settlement agreement. I had no idea what was in the settlement but I thought Ferman might be able to look into that.
I thought that when it became common knowledge that I was going to testify today, I thought the County detectives would interview me to find out what I was going to say. I was kind of disappointed that they didn’t.
BM asks if he’s helping the defense (couldn’t hear the actual question).
Let’s be clear, Mr. McMonagle, I’m not on your team. I want them to win.
End of Direct
Scales of justice were tipping in Cosby’s favor.
Wasn’t using microphone—couldn’t hear next question but he’s now on a microphone.
I think AC was inappropriately touched by Mr. Cosby. I analyzed it in terms of what I could prove, not what I thought.
Setting aside what I believe, we have to follow the rules of evidence in determining what can be proven.
AC’s behavior after the alleged molestation, her inconsistencies and more in my mind meant she ruined her credibility. It does not mean she wasn’t telling the truth. It means that I did not believe 12 jurors would find her credible. I did not think she could withstand cross examination in order to withstand the test.
I never met with her. I read the reports of those who did talk to her. I didn’t need to look into her eyes to determine that there’s a problem. She could easily be discredited by a jury.
He handled sex crimes cases. When he was in the unit, the decision to prosecute was made by someone above him.
Can recall another instance where you declined to file charges but made the same binding agreement to strip someone of their 5th Amendment rights? I cannot recall a case in Montgomery County. The way I’ve done it in the past, someone already has a civil case going and witness refuses to testify. Someone in the case would call me to ask if I was ever going to prosecute. I said no.
Not sure how many times. He did it about half dozen times over 14 years. In those cases, judge would want assurance from him. BC doesn’t recall any names.
Cosby gave a statement in 2005. BC doesn’t know if Cosby’s attorney was present. Cosby didn’t assert the 5th then either.
Press release—Castor says he spent a great deal of time crafting it. You expected three separate audiences to understand it? BC: No, just the opposite. I wrote it so that they wouldn’t understand. I knew the media would take the essence (“insufficient evidence”) but that lawyers and litigants would see that there was evidence to arrest him but I thought it was inadmissible at trial.
Credibility of witnesses is not the issue at arrest. There was enough evidence to arrest him. But there was inadmissible evidence (wiretaps) and credibility issues. The message to the litigants was that “you don’t really want me to explain this” or it could embarrass both sides.
What I cared about was the greater legal community seeing the analysis that I went through.
Litigants should have understood the press release to strip Cosby of his 5th Am rights.
I expected that the media would not understand the press release. I didn’t care what the broader legal community thought but I wanted them to know the process.
Now BC says there were no litigants.
Issue before me was: Is there sufficient reliable and admissible evidence to prove case beyond a reasonable doubt.
The only other people who really knew what was going on were Wally Phillips and Bill Cosby.
Are you recalling these things from memory? Some. Some items I reviewed in preparation for today. Which reports did you review? Police reports from Canada, Cheltenham, Cosby’s statement, emais and letters with Ferman
BC wanted to create the best atmosphere for a civil suit.
Meeting between Castor and Phillips where WP suspected there was some wiretap evidence. I thought that WP brought me info early on but can’t say for sure.
WP thought that AC’s mother was involved in the wiretaps.
Jan. 26, 2005—gave a press conference related to the case? Can’t recall. Can’t recall any presser where he made statements about Cosby (before 2/17/05)
Appears that the ADA is going to refresh his recollection. Hands a bunch of documents to witness. He needs to review them.
Mid-afternoon break for 12 minutes—until 2:30.
2:30 Shown a newspaper article from ABC News re New Developments in Cosby Case dated Jan. 27, 2005.
Document on the screen. “At a news conference on Wednesday, DA Bruce Castor says Cosby has been cooperating fully…”
This still doesn’t refresh his recollection about it. ADA reads quotes from Castor in the article. One quote is that Cosby is presumed innocent and is free to come and go. Another statement is that he found AC credible.
I do not recall making those statements on that day.
Would you have any reason to believe that the quotes I pointed out are inaccurate? J. intercedes. Rephrased.
Do you believe the quote is inaccurate? I’ve seen myself misquoted so many times that I have reason to believe it could be inaccurate. I don’t remember giving a press conference in this case.
He wouldn’t discuss credibility issues in public until a final decision is made. Shown newspaper article about Cosby meeting the law enforcement over sex assault allegations. (Article printed from internet.)
Pottstown Mercury newspaper printout.
Date on that article is 1-27-05. (J. interrupts and even stands up. Tells ADA to take down one article when he’s starting to talk about another.)
ADA reads a quote from that article about how Cosby was cooperative and didn’t appear to be withholding anything. Castor doesn’t recall making the statements in the article.
(I think ADA’s surname is Ryan.)
ADA asks him to speculate on something he doesn’t recall. (People giggle.)
“My best guess is that…” OBJ by BM
J. says it’s a permissible question. He did a lot of thinking with that press release. If Mr. Hester generally gets it right… now they’re talking about the ABC News article. (J. permits it.)
My best guess is that I was stopping speculation in the public that we were coming to a rapid conclusion. On 1-27-05, I did not think the case was impossible to win. I hadn’t given up on hope that we could create a criminal case.
Were you creating the best possible atmosphere for AC on that day? Castor repeats that at the time he still thought the case could be winnable. I was concerned with the best possible atmosphere for a criminal case.
Shown a Bloomberg News article written by Lisa DePaolo: Why did Bruce Castor Pass on Chance to Lock up Bill Cosby? Dated Nov. 2014. Doesn’t know her or recall it. Second paragraph—quoted as saying AC’s case was “weak.” Doesn’t recall ever saying that publicly before he declined to file charges. Back to ABC News article: failure to disclose in a timely fashion and continued contact with Cosby are factors that weigh in Cosby’s favor. (I’m paraphrasing)
Another article from Missouri. Headline includes that DA says case against Cosby is weak.
I simply don’t remember. ADA reads a line from it which Castor says is a true statement but he just doesn’t recall the press conference.
Ex. 4, page 2. Once he determined that the case couldn’t be prosecuted, he intended to create an atmosphere where AC could succeed civilly.
BC says he basically threatened her not to attack his office because the consequences could hurt her chances in the civil suit.
Ex. C-5—Daily Mail article from 11/18/14.
4th paragraph—purports to be an interview with him where he made statements directly to MOL (mail on line)
Points to a quote on page 2 (I think).
BM objects. It’s one thing to ask about documents Castor prepared (like a press release) but these articles are not his—he’s quoted. Judge says this is not an attempt to get facts into evidence but rather to get his prior statements into evidence.
“There was almost no evidence on which to hang a criminal case. The lady didn’t remember what occurred…
I don’t remember that. 4th paragraph—ADA reads it. BC doesn’t remember giving that quote.
Another quote. BC: I don’t think I ever chuckled nervously. (courtroom laughs)
I’d never seen or read any of these stories before so no I don’t recall.
Article from the Washington Post. “Pros who declined to charge Cosby in 2005: I didn’t say he didn’t commit the crime (11-19-05)
Doesn’t recall saying it but it’s true.
Recall 11-19-14 appearance on CNN related to this case? Doesn’t recall CNN specifically. Plays the CNN video for him. (pause to get the interview to work)
Castor says in the CNN interview that he thought Cosby was lying and being evasive. (Uh oh—inconsistency)
January 2015 he announced his intention to run for DA again.
When AC sued me, I said I announced in late 2014 but that wasn’t accurate. We checked it; it was January 8, 2015 (or around there).
Is it fair to say that you sat down to discuss with others anything an opponent may use to make him appear in a negative light? I don’t recall that. Usually you hire people who come up with stuff. Doesn’t recall a meeting with others.
Oct. 2015 radio interview (WMPV). Probably accepted the invitation but doesn’t recall. Plays a portion of the radio interview.
He says we sat down to figure out what cases could be used against him. BC says he’d never said anything negative about Steele up until this point.
BC says “we sat down…” meant the campaign.
Moving into this analysis (not agreement) that stripped Cosby of his 5th Amendment right.
I made a judgment to do this as the sovereign. I told Wally Phillips this was my legal theory and he agreed to it.
Sept. 23, 2015—his email to Ferman.
No one in law enforcement told me the case was reopened. I read it in the newspaper. Did Brian McMonagle tell you? I think he called and asked if I had heard that the case was reopened. I never knew as a fact from anyone on the inside. McMonagle wanted to know what I knew but I knew nothing but what I read.
There was an Inquirer article on 9-12-15.
BC made a social media post about it.
Ex. 9 shown to Castor.
Doesn’t immediately recognize it. It’s an Inquirer article. ADA corrects the date to 10-14-15.
BC says it was around the middle of Sept that he first began to think that law enforcement was considering whether to prosecute Cosby. Print is too small for him to read.
BC is being sued by AC for making commentary in the press. I thought I was being sued because I commented on a Inquirer article in social media…
People Magazine –not a regular reader of it
Facebook posting—9-12-15 is when he makes a reference to it.
I thought the allegations in the civil suit by AC were more detailed and precise than her statements to us. Thought it could hurt us so I wrote “trouble for the good guys.” He tweeted that.
Where was it first discussed that you would strip Cosby of 5th Am rights? Had a # of conversations with Wally. Probably first discussed it with my wife.
Black letter law –coming from a case…
I just finished a case last year that said if there’s no chance of a prosecution, there’s no 5th Am right.
I would consider that to be black letter law.
Around mid-Sept. McMonagle called him. Could have been Sept. 22. Aware that on Sept. 22 BM had a meeting with Ferman about reopening the case?
Believes he told WPhillips of his analysis at the DA’s office.
When did you discuss this analysis with Ferman? I probably just told her what we were going to do.
Doesn’t recall Ferman coming with an objection raised, not that it would’ve changed things.
3:49 Break until 4 pm.
4:03 D-5 is the Sept. 23 email he sent to Ferman.
He instructed Ferman to tell AC’s attorneys what we were doing—not prosecuting. BC did not speak with AC’s lawyers. Cannot recall if Ferman reported back any objections from AC’s lawyers.
“With the agreement of Andrea’s lawyers” meant the decision not to prosecute and that it would set the dominoes in effect for the civil suit.
AC’s lawyers were not part of the discussion. It was a courtesy that I delegated to Ferman. He didn’t care from a legal perspective what the civil lawyers thought.
You didn’t remind Risa that you sent her to tell AC’s lawyers?
ADA picks up on a reference to “we” and throws in “sovereign” with the question.
The intent was that the non-prosecution would make Cosby have to testify. It was the understanding of BC, Phillips and Ferman told her (or didn’t tell her). He assumes Ferman reported to him but doesn’t recall what it was.
The opinion of the victim became irrelevant/insignificant.
“As you well know, you represent the Commonwealth, you do not represent the victim.”
Sept 25 letter from Ferman.
Regarding the article Ferman references in the letter, BC says he’s not sure he was quoted in that article. There was erroneous information. He contacted the reporter and asked for a retraction.
BC says that statement made by Ferman is not true—that files contain nothing. He still has the press release. Article was published on 9/24/15. It made the first reference to a written declaration.
BC says the writing was the press release but he can see how anyone would think there was another one based on that article.
ADA reads from the article. BC agrees with what was read. He’s quite sure that he did state in an interview with Peggy Gibbons on 9/24/15 that the purpose of the press release was to have it in writing and to strip Cosby of ability to assert 5th.
Did you tell Gibbons that Cosby could never be prosecuted in this case? I told all reporters that. That’s how Cosby sat for the deposition.
Castor reads from the press release: “insufficient, credible, admissible evidence…”
BC told reporters that Cosby wasn’t going to be prosecuted so that he could sit for a deposition. “If there was any wiggle room, he could take the 5th. It was my specific intent that he not be able to take the 5th.
ADA points out that Castor’s recollection is so specific on this but he had no recollection of 6 articles he was shown.
BC responds that it’s the essence of the case—that’s why he recalls–and I explained to almost every reporter who asked why I did what I did.
I was absolutely certain as of Feb. 16, 2005 that that was the right move and no one was going to change my mind.
ADA: It must have come as a shock to you when she sent you the Sept. 25 letter stating she had no knowledge of a binding agreement not to prosecute?
I trusted her. She tells the truth and recalls it as she does just like I do. I have great respect for her legal acumen.
I was the only person with the power to make that decision and I made it.
I told Ferman what we were going to do and I assumed she would carry out my order to communicate it to the victim’s lawyer.
4:36 Ex. D-7.
This is the 9/25/15 email to Ferman that the writing is the press release. ADA asks about the line—“that is what the plaintiffs’ lawyers wanted and I agreed…” Is that based on Ferman not reporting anything back to you?
What did you mean? Plaintiffs’ lawyers knew that he was not going to be arrested; they wanted to make money…
“I signed the press release for precisely this reason—at the request of plaintiffs’ counsel.”
Someone wanted it signed. I assume it was Ferman but I’m not 100% sure.
He’s 90% sure. It could have come from the detectives also.
They wanted something signed that Cosby would not be prosecuted.
Who told you that?
Either Ferman or one of the detectives.
Back to the Press Release (D-4)
“DA Castor cautions all parties that he will reconsider this decision should the need arise.”
Today, he said the sentence modified the sentences before it.
Did you read the Inquirer this Sunday? No.
Hands it to BC.
Page 3 of 6. Bottom of page: “I have said repeatedly and for months that if I got the opportunity to review the Cosby case, I would.”
He made the statement in 2014 or 2015.
Same page: “I put in there that if any evidence surfaces that was admissible, I would revisit, and that evidently is what the DA is doing.”
Paragraph above references the press release? No—not true.
BC says he did not intend that AC’s allegation should be prosecuted even if new evidence arose. I thought we could investigate perjury. I thought it was possible that some of the other victims occurred in Montgomery County.
Regarding his language in the Sept. 25 , 2015 email to Ferman, Castor says he was not referring to the prosecution of AC’s case—but other situations; that perhaps there were other victims in Montgomery County.
End of Cross
4:58 Re Direct/becomes questioning by the judge
Expounds on last point on cross. He meant other possible cases, just not AC.
Judge is questioning Castor regarding what would constitute perjury. Judge continues:
There was a decision not to prosecute—there was no “agreement.”
He did it to strip Cosby of his 5th am right for all time for that case. There was no civil case filed by the plaintiffs at that time.
Where did you learn of the possibility of a civil suit? Andrea’s lawyers comments in the media, deduction that AC and her mother were trying to extort Cosby.
Deposition of Cosby wasn’t until September.
BC agrees with the judge that Cosby could assert the 5th at any time.
If he did assert the 5th, there’s nothing you could do about it—nothing at all. BC: Not true, your Honor. The plaintiffs lawyers would go to the judge with the questions. They would come to me to see if there was going to be a prosecution.
If I said no, the judge would order him to testify.
J: We have an immunity statute. You’re familiar with it?
BC: That’s only use and derivative use immunity. At common law, it’s the sovereign that confers it.
J: If you thought there was an agreement, why did you not create a written document and file it away?
BC: It was unnecessary because I concluded there was no way the case could get any better. … There was no judge to file it with anyway.
J: There are miscellaneous dockets. You can create one.
J: There’s a statute that deals with immunity.
BC: I disagree. There’s use and transactional immunity. The legislature took from the sovereign use and derivative use immunity—need to get the court’s permission.
BC: There would be a suggestion in the court of public opinion that he had done something wrong and needed immunity. I didn’t want use and derivative use immunity to be given. I wanted full immunity that the statute doesn’t cover.
Phillips did nothing in exchange for BC’s decision not to prosecute.
J: After you made the decision not to prosecute, why did you feel compelled to do anything else?
BC: I have to tell the public.
J: Why is that? Where is that?
BC Cites prof code; disciplinary rules
BC says he had an agreement with Wally Phillips that Cosby couldn’t take the 5th.
Judge finishes his question.
Brief redirect by Brian McMonagle
Goes through the prosecutor’s duty to do justice. Rehashing of things BC already said.
Intention was that Cosby would not be prosecuted EVER for these allegations.
Witness is finished/Castor is released from the subpoena.
9:30 am tomorrow
Maybe more witnesses. Judge wants to make a decision tomorrow.