Montgomery County Courthouse
Judge Steven T. O’Neill
9:17 Cosby is in the courtroom in a dark brown suit, white shirt and tie.
9:22 Lawyers are milling around. Cosby walks out on the arm of a beefy guy. He has a cane hooked around his other arm.
Cosby returns a few minutes later.
9:26 All the attorneys are in court. No judge yet.
9:29 Attorneys now in chambers.
9:34 Judge is on the bench.
Judge describes the chambers conference regarding the procedure of the day. There’s no firm plan; we’ll take it a step at a time. It’s still the defendant’s case.
#2 — John P. Schmitt by defense attorney Chris Tayback
Goes by the name Jack. I’m a lawyer at Patterson, Belknap in NYC since 1983. Of counsel since Jan. 1 this year. Speciality? Corporate lawyer. Has represented Bill Cosby since 1983. In what capacity? Became more involved in his legal affairs then became general counsel. Any legal matters—Cosby comes to me first.
In 2005, became aware of a criminal investigation into Cosby. Allegations were by Andrea Constand. This was Jan. 2005. I reached out to former AUSA and he reached out to others. All recommended Walter Phillips. He was retained as criminal defense counsel to Mr. Cosby in the investigation.
Phillips would deal with DA. He would come to me and I would discuss with Mr. Cosby. Cosby cooperated with the investigation. He was interviewed in a conference at my office by detectives. Phillips was there too.
The criminal investigation was resolved within weeks in mid-February. How? The DA determined there was insufficient evidence to prosecute.
I understood that the case could not be reopened. I spoke to Phillips who said that though Cosby wasn’t being charged, DA wanted to make sure he had to testify in a civil case—and couldn’t take 5th.
It was his understanding that Cosby could not be charged—it was irrevocably precluded.
He expected that a civil suit would be filed. We retained civil counsel to Philadelphia (O’Connor) after the criminal case was concluded. Civil suit was filed in March 2005. Schmitt participated in the defense of the civil case. He relied on the decision not to prosecute.
We participated in discovery. Mr. Cosby sat for 4 days of deposition knowing that the criminal case could not be reopened. Did Mr. Cosby invoke the 5th? No
“If you knew the criminal case could be reopened, how would it have affected you?
I certainly wouldn’t have let him sit for a deposition.”
He did not receive inquiries about how the matter was resolved or requests for the deposition.
Phillips died last year—about a year ago.
End of direct
Cross by Kevin Steele
Practicing for 36 years. (not sure this is as of now or as of 2005)
As general counsel to the defendant, you’ve been actively involved in agreements involving him? That’s correct.
Would you agree with me that it’s a good practice to get things in writing? As a general matter, I agree with that.
I want to go through a timeline with you. You were familiar when an investigation was going on involving your client? Yes
Former DA put out a press release asking Cosby’s legal team to meet, correct? Yes—January 2005.
When that meeting goes on in your offices in New York, there are detectives there, Cosby, Philips, detectives are taking notes? Yes, they’re taking notes.
At no time during that statement do you tell your client to take the 5th? (Steele raises his voice) Answer: That’s correct—he didn’t take the 5th.
Meeting was 1/26/05.
Judge: You and Phillips were present in the room when the statement was taken?
Ans: That’s correct.
Back to Steele’s questions.
Witness identifies Cosby’s signature, his own and a few others—on the statement.
This is an 18-page statement.
KS: When that statement …
McMonagle objects that the content of the statement is irrelevant.
Judge: my ruling is relevant to the decision Castor made but I don’t know why these questions are being asked.
Sidebar—they leave court to discuss.
Judge: There is an objection. I’m holding it open to see if we can go about the purpose of the questioning.
KS: You were there for the entirety of the statement?
KS: A number of questions were asked that could be the basis for a criminal charge:
KS: At no time while he was giving those answers…you never stopped that interview to take the 5th?
JS: yes and they never led to criminal charges
KS: That’s not my question
JS: I had interviewed Mr. Cosby before… colloquy.
KS: You had talked to him and you were confident that you wanted him to talk because it wouldn’t lead to criminal charges?
JS: That is correct.
KS: You were confident in the deposition too, right?
JS: The deposition was in another case.
KS: But you talked to him and you were fine with his testimony?
JS: Yes I did.
KS: You would agree with me that you never obtained a written agreement from Mr. Castor that your client would never be prosecuted?
JS: I have a signed statement from him.
KS: The press release?
KS: It also says that the case can be reopened?
JS: No it doesn’t.
JS reads the press release statement aloud regarding reconsidering the decision.
KS: That’s the statement you got that they wouldn’t proceed on charges?
JS: Yes it was.
JS obtained no other written document regarding that agreement.
I realize most of your practice is civil. KS reads from civil practice document that includes advice to get agreement or assurances in writing. …
JS says that Phillips got oral assurances that this was irrevocable decision.
National Enquirer—JS was involved in negotiations with the NE. In an agreement, typically one side is giving something up—that’s contract principles? OK.
JS had negotiated Cosby’s interview with the NE.
10:08 (can hear attorney whispering—think it’s KS)
JS shown Ex. D-14 to refresh his recollection about the NE negotiation including written negotiation.
JS is going through the pages and describing what’s on them, generally. BM objects because there’s no question pending so JS doesn’t need to describe the pages.
KS: It appears to someone not involved in the negotiation that this goes back and forth with emails and letters and changes to them. There’s an email with your byline on the top.
KS approaches the witness stand. JS shows KS a particular page.
KS: It appears from these documents that there’s a negotiation in writing in regard to what your client’s going to do and what you’re going to do? I can go through the paragraphs.
KS: Cosby is going to do an exclusive interview with the NE. He’s going to apologize to his wife if he’s done anything to hurt her.
BM: Objection. Hearsay
Judge: Try to ask questions without reading the statements. I don’t want this stuff out there if it’s not necessary for my ruling.
KS: I’m not offering it for its truth.
KS now directs JS to look at certain paragraphs by number—he doesn’t read the content. Pause as JS reads document.
KS: Can you agree with me that hwile the criminal investigation is going on, you were working through the interview with the NE?
KS: You were saying things like, if criminal charges are filed, we’re not going to do this. If not, we will…
JS agrees that there were very specific terms that were being negotiated.
Later, they go off to (Houston?) to do the interview.
JS agrees that it was important in that case to have the written terms.
KS fast forwards to the filing of the civil case and when depositions were taken. KS waits for an answer.
JS: I’m sorry to offend you but you didn’t ask me a question.
KS: In those depositions, is there a procedure to follow before it’s taken? Do you go over the rules of what’s going to happen?
JS: No. You set a time and place and you agree to sit for the deposition.
KS: In this case, there were 4 times you sat for deposition?
9/28/02 and 9/29/06 and 3/38/06 and 3/29/06
JS was present for all 4 days.
KS: 3/28/06—at the beginning it talks about stipulations, agreements, unsealing, agreements that are being made regarding the NE interview. Would I be correct in saying that you put the rules at the beginning of the depos?
BM objects to form of the question.
JS: I’m a corporate lawyer. I bring it civil litigators. I don’t know what the stipulations are—I rely on the civil attorneys.
KS: Fair enough.
KS: You knew what the 5th was?
JS: I knew, yes.
KS: If it was so important to have this agreement, there’s no mention at the beginning of these depositions of the 5th? Steele is yelling
JS: You don’t have to yell at me.
JS: The agreement was made with the DA. Civil case was filed after. No need to discuss the 5th because the DA has made an irrevocable decision not to prosecute. I relied on the attorneys I hired who assured me. I never spoke to Mr. Cosby.
JS: There was no other written agreement.
KS: Was it AC’s attorneys who were benefitting from the deposition?
JS: Civil attorney made objections to the questions he deemed inappropriate.
I know there were a number of times when AC’s attorneys would take questions to the court. I don’t recall when.
Pause as Steele whispers to McMonagle about the next document to show JS.
Shown article from Phila Daily News to refresh his recollection.
JS: I don’t have an independent recollection of this. I see the report of it but I don’t recall the motion practice.
JS agrees that the 5th was needed in the depo so it was never brought up.
Moves on to the settlement of the civil matter.
KS: Do you recall that you requested a release from criminal liability?
BM: Objects because of the confidentiality agreement. Plus it’s hearsay.
KS: This is cross examination.
Judge: He’s asking about a term within the confidentiality agreement—if limited to how it’s reached, OK but not the content.
Attorneys go into chambers.
10:40 Judge is on the bench.
There’s an objection to a paragraph in the settlement agreement that deals with criminal charges. Overruled. Can ask the question.
KS: Originally, there’s a request to release him of criminal liability and that AC cannot initiate a criminal proceeding.
(didn’t hear JS’s response)
JS is shown another portion of the settlement. It refreshes his recollection.
Settlement says that AC will not initiate a criminal complaint against Cosby. It also says that if law enforcement makes a document request, must comply.
In a civil matter, if a party takes the 5th in a depo, there’s a negative inference that can be made by the jury.
End of Cross
He became Cosby’s principle lawyer in the early 1990s. JS first learned that authorities wanted to talk with Cosby in 2005—just days before the 1/26/05 meeting. Before that, he had never consulted with WP. Retained WP only for the defense of Cosby.
Doesn’t believe there was a written retainer with WP.
Goes through who was present at the 1/26/05 meeting. JS thinks Shaw—an attorney in his firm was also there.
Judge asks questions:
For investigators, Cheltenham PD, Detec from Montgomery County.
A statement was being taken and questions were being answered by your client for an alleged criminal act. Following the statement, people signed it. Included Chief of Police Norris, Shaffer, JS, Cosby, and mentions a few more names.
Why didn’t retained criminal counsel sign the statement?
JS: It was produced at the conclusion… I don’t recall why Wally didn’t sign it. I don’t recall.
Cosby did not give other statements to law enforcement authorities. JS does not recall any other LE authorities saying that Cosby would not be prosecuted.
At the time of the depositions, were you or anyone representing him, aware of claims in any other states of a similar nature? We were aware through plaintiff making claims in discovery and in depos. They had Jane Doe witnesses.
Civil suit filed 3/8/05.
JS was at the deposition. Was the 5th interposed for any questions, at any time? No.
Judge: So, even as to non-Constand matters, there was no 5th? No.
Did you believe the press release would cover that?
JS: I don’t think we formed an opinion as to that.
Judge says lawyers get another round with JS based on his questions.
Questioning by BM:
Why did you include that sentence in the settlement if you knew Cosby could not be charged?
JS: We wanted to cover all our bases—other jurisdictions.
Cosby didn’t voluntarily engage with the DA regarding a criminal investigation (reference to not negotiating)
Sometimes his adversaries don’t see the facts as he does. The DA can agree. It was his understanding that if DA brought charges, Cosby could assert the 5th.
CT asks about 2-page press release—and the decision to reconsider the decision. JS says it was a reference to his decision not to expound further on the case. He was telling us not to expound publicly so as not to poison the jury pool. It was not a reference to the decision not to prosecute.
Questioning by Steele:
Judge asked if you knew of other allegations at the time and you said no—you learned of them through discovery. Wasn’t your entire negotiation with NE about other allegations? You’re correct. I stand corrected. We learned through NE—about 2 months before discovery.
KS: You would agree with me that the line in the press release about reconsidering is open to consideration?
JS: I don’t think it’s ambiguous because of the context. (rereads aloud some of the paragraph)
That language did not give him caution about going forward in the deposition. He also had the assurances of the DA.
KS: Never went to the judge; never made a record in the deposition clarifying that he can’t be charged
JS: The criminal matter was closed.
KS raises his voice again. He’s agitated.
KS: Cosby’s statement that you sat through—was that involved in the criminal case? Yes.
KS: Did the civil allegations involve the same matter?
KS: At no point do you clarify the press release or what WP said with the federal judge?
It wasn’t an issue.
KS: I asked if you did it—yes or no.
End of questioning. Witness is excused.
11:11 Break until 11:25
11:26 Back in court
Stipulation in Cosby’s case. (He has the burden in this hearing.)
I’m not aware of an investigation by our office from 2006 through 2015 regarding the 2004 allegations by Constand. (Steele agreed to this.)
(Unclear who this refers to—is it Steele saying this?)
Attorneys discuss with judge what exhibits are in evidence and what was used to cross a witness only.
Exhibits 1, 2, 4, D-5 – D-8 (per ADA Ryan)
Judge wants to at least address the disqualification of the DA matter by the end of the day.
Defense rests. Steele wants to argue now.
Judge: This is unique. I’ve allowed this habeas now as to whether the Commonwealth’s case should be dismissed at the outset. No cases on this point. Judge did an exhaustive search.
I’m taking this as a demurrer. Will use the standard of light most favorable to the proponent which means for the defense.
What’s the standard of proof? I think we’re correct to call it a demurrer and to consider it in light most favorable.
Prima facie is the standard for the prosecution. Not so here. I’m applying the standard for general motions. One of the attorneys says it’s at least a preponderance of the evidence.
KS: It is unique. We’ve had this hearing… They have said the charges violate an express agreement by the DA that Cosby would never be prosecuted for AC’s allegations. They have not met their burden.
The press release of 2/17/05 has different interpretations. The most telling came yesterday under cross. KS reads the “reconsider this decision” sentence.
When he was asked about it, Castor said he put in there that if any admissible evidence surfaced, he would revisit the case (per an article from last fall). (This is a different explanation for the reconsider sentence.)
Judge interjects that this is a credibility issue for Castor. How does this affect the defense’s burden?
KS: You do need to consider credibility. They say this is an express agreement.
Next aspect—the exhibits they put forth from Castor and the language of his different emails. For a non-prosecution agreement, on its face, it’s not there. Sept. 23 email language: Castor says the civil attorneys were part of this because they wanted Cosby to testify. He goes on to say Cosby could have an action against you… No mention of this binding agreement. Simply a focus on opening him up for the deposition.
KS continues. Then there’s the article Castor referred to and Ferman’s letter asking for the written declaration. He responds and says “plaintiff wanted and I agreed…”
In D-7, he states, naturally if a prosecution could be made out without Cosby’s testimony, I believed then and still believe that a prosecution of Cosby is possible. That was his position last fall.
Followed up with D-8—the agreement is “baked in.” Also, Castor said “I never agreed we would not prosecute Cosby. I only agreed that anything he said would not be used against him in order to force his testimony in a civil proceeding.”
KS continues. Gets giggles from the courtroom when he makes reference to the “sovereign.”
He’s saying I’m a sovereign and you can’t prosecute, then he tells BM I’m not on your team, I want them to win.
We’re moving to dismiss the defendant’s claim even looking at the evidence in the light most favorable to the defense.
There’s no legal authority for a DA to confer transactional immunity. We have found no authority. Our PA Supreme Court has determined that only statutory use immunity is available.
A grant of immunity by a prosecutor is defective. Cites a 1992 case. Cites another case from 1960s that says a promise by prosecutor is not legally binding.
Next aspect—valid contract? There’s no contract in this. Their own witness said there is no agreement. So that theory falls too because there’s no quid pro quo that comes from this. There’s no common law benefit. The defendant didn’t plead guilty or give us information. Supposedly he gives up his right to invoke 5th amendment in a case that hadn’t been filed yet. There’s no consideration—argument falls.
Is he entitled to relief under some estoppel? I point to the second witness. It’s not reasonable not to have this in writing. They’re relying now on the interpretation of the press release. What was given up?
He was represented by multiple attorneys. This unilateral transactional immunity is not valid.
There are avenues available to them after the prelim and the case is bound over. They can move to suppress. But transactional immunity is just not valid.
End of KS
Argument by defense attorney Tayback
Current DA is trying to get out from under the premise that BC made the decision that Cosby would never be prosecuted.
PA typically has the burden to establish a prima facie case once habeas is filed. Court structured the order of hearings properly. Defense is obligated to produce facts that would justify dismissal. That is a preponderance standard so I do believe that is the proper burden here.
We have met our burden. I want to start by talking about the law.
“This prosecution should be stopped in its tracks.”
KS conveyed the sense that Castor was overreaching when he said he was the sovereign. Puts up on the screen citation from a case that refers to the DA as the sovereign.
The DA has the power to prosecute, not prosecute, and to promise not to prosecute. Cites a federal case that says an agreement not to prosecute is appropriate.
1986 PA case that says a DA’s promise not to prosecute is legitimate; ability to make such a promise is essential to our criminal justice system. (I’m paraphrasing…)
Second principle is that a DA’s promise not to prosecute is enforceable. Cites another PA case. It was an oral agreement. The court upheld the promise.
Cites a 2010 third circuit federal case that says prosecutors routinely enter into promises.
Judge: Is there a difference between withdrawal of a prosecution as opposed to promise not to prosecute?
I don’t see any legal distinction but don’t recall more cases that make the distinction.
Concept of promissory estoppel.
The promise is no different here either. If you induce someone to act by something you said and they relied on it, the application of estoppel in promise of non-prosecution has absolutely been upheld.
Where does that leave us?
With that background, the request is not remarkable. This proceeding is but not the request.
Eleven years ago, Mr. Cosby relied on a promise. The Commonwealth is obligated to enforce the promise.
This is about the unlawful prosecution and detention of an individual—Mr. Cosby. Reads from some of Castor’s testimony.
The question isn’t about whether Castor was right or wrong. The question is whether his promise is enforceable?
Look at the language of the press release. Extremely unusual. He is creating a framework for Mr. Cosby to have eviscerated his constitutional rights.
Judge: If that’s the purpose, doesn’t he have redress? Why isn’t the redress through a motion to suppress?
Because that wasn’t the promise—that his testimony wouldn’t be used against him. The promise was that he would never be prosecuted for AC’s allegations.
Judge stops defense attorney because he referred to it as an agreement.
Language is fluid. Promissory estoppel is an agreement even though it’s a promise.
It was an agreement to Cosby. He’ll be more mindful of word choice.
Castor’s testimony corroborates the press release.
Judge notes that he’s not saying this is a PA immunity case because Cosby was never charged with a crime.
Even if Castor were to concede that he should have opened a miscellaneous number what is at issue are the consequences of his actions.
Judge questions whether Castor’s description of what he meant in the press release matters to contract law. You’re saying it’s forms the basis for the justifiable reliance on it.
Atty: The promise is the enforceable commitment not to prosecute. The only other witness to this is dead.
What Castor did was lawful. The question is not whether it was reasonable. Next question is whether reliance on it was reasonable. Schmitt said he would not have allowed Cosby to sit for the deposition if there was a chance he could be charged.
Cosby relied on this promise in sitting for the deposition… and to his detriment. The affidavit of probable cause relies on his deposition.
Even if the agreement were use immunity, it would still not be denied.
Judge: You brought it up. The statement of probable cause includes extensive statements by AC and Cosby. The state is relying on statements from 2005 from both of them. They also said they will rely on the depo. which can be subject to suppression.
Judge says only a small part of the PC affidavit includes the depo. There were other statements… Do you agree there are statements of your client and AC for the criminal case?
I agree there are other statements but they don’t establish PC.
Judge: I expect you to say that.
The agreement was that he would not be prosecuted.
Commonwealth’s arguments are:
1. statutory – we discussed
2. whether the press release is an agreement. I agree that it is not; but it’s evidence of one
The commonwealth says there was no non-prosecution agreement. Our position is that the press release is evidence of it.
Nothing happened in the case since the civil case ended. The DA never tried to get the deposition. Whether it was under Castor, Ferman and Steele, nothing was done and that’s consistent with a non-prosecution agreement. There is no evidence that contradicts this other than Castor’s characterizations between then and now.
I say the testimony of Castor was unimpeached.
Castor was right in what he was inspired to accomplish and how he did it.
We can’t call the other party to this binding commitment. We have Castor’s testimony—his explanation for what he tried to accomplish. Sitting in that chair and saying what he did is not easy.
What ever you think of his decision or the merits of his decision, he’s a man of his word. He was called by an unpopular defendant and said let the chips fall where they may.
I can’t think of a scenario if this was any other defendant, the DA wouldn’t understand. Castor said no one even contacted him about his decision.
The current DA’s hands are tied; it binds the Commonwealth. It’s binding for all time and must inure to Mr. Cosby’s benefit. Certainly we met our burden.
Judge: This is potentially not the final arguments but they are the major ones.
KS argues briefly. He reads Ferman’s Sept. 25, 2015 letter that she searched her files and no such agreement exists. The first she heard of it was in an article. He says Castor’s story has evolved over time.
Judge’s decision is only on the motion by Cosby – limited issue. Will hear argument on the DA disqualification motion too.
If judge rules for Cosby this afternoon, then the prosecution can call witnesses to convince the judge that there was no binding promise not to prosecute. Then there will be more argument!
Lunch recess until 1:45.
1:49 Judge is on the bench
I’m not clear on what the law is if I rule on a demurrer now in a case of first impression. I’m deferring a ruling now. The Commonwealth can call witnesses if they choose. Court does not want to run into legal issues regarding.
Commonwealth calls witnesses.
1. Dolores Troiani by female ADA—Kristen Fedder (sp?)
Witness is sworn. Gives over her legal background. Was prosecutor before private practice. 40 years as an attorney. She has appeared via subpoena.
She represents AC in her civil suit against Bruce Castor but that has no bearing on her testimony today.
Had contact with AC in 2005. He had and his representatives offered her money. Wanted her to go to Florida. There has been non consensual contact. We wanted to represent her in a civil suit.
In Jan. 2005, represented her first in the criminal case then the civil case.
Any other attorney who was assisting you? My law partner.
Not true that AC contacted her first before going to the police.
Did you know Risa? No.
I do not know Judge Ferman.
DT has some contact with Cheltenham police but not the DA’s office. She did not have contact with Wally Phillips.
Did not discuss the possibility of a civil suit with the police or DA or anyone representing the defendant.
At no time did anyone convey to her that Bill Cosby would not be prosecuted.
How did you become aware of the press release? I was in my office. Knock on door. Camera was there and asked what I thought of the press release. I didn’t know what press release. Learned that he declined prosecution.
Eventually 5 or 6 or more TV reporters and trucks appeared.
Then I notified the victim.
Shown copy of Daily News article from 2005. It contains statements she made to the press after seeing the press release. She offers it in evidence.
Judge: You’re offering a consistent statement but she hasn’t been impeached yet. Maybe after her cross examination it will be relevant.
ADA is arguing in vain to get it in.
Was surprised when she received the press release. Why? The tone of it. Earlier in the day, I was receiving calls from the reporters. Obj by defense Monique Pressley.
I called my partner. After 5-5:30 when nothing happened, I called partner and said I guess the press was wrong. Then the press release came out. We looked for a correspondence from the DA to AC or me carrying out his duty to keep the victim informed. (NOTE: She’s referring to the Victim’s Bill of Rights. Not sure what the bill says in PA.)
I had to read her this, and it was a hard statement.
We feared Castor might not file charges because he was running for office and he may not want to offend Dr. Huxtable. (when????)
Women came forward to us. … We thought he might bring charges.
My understanding of this press release was that there would be no charges at this time but if more evidence was gathered, he would consider it.
The tape recording between Cosby and AC’s mother got a lot of press. We’re a one-party consent state. There was nothing illegal about that tape but he had something in here (press release) about that. We found the tape damaging because it had… Objection.
ADA: Our position is that he was being incredible and he was trying to inject himself into a political race against Mr. Steele.
The reference in the press release to illegally-obtained evidence is the phone calls.
Judge: We’re not going into DT’s representation of AC—and the details of it.
DT continues reading from press release. She believed that the wiretap evidence was admissible at the time. A PA case said you apply the law of the place where the recording took place. It was perfectly legal to record in Canada.
Testimony from other women would have been admissible as prior bad acts. In Cosby’s statement to police… OBJ by MP.
Judge: I’m trying to prevent where she’s putting out her client’s version of the events when this case hasn’t even gotten to the prelim yet. Sustained. Do not give specifics.
DT: I believe the conversations that occurred between AC’s mom and Mr. Cosby… Obj by MP
2:20 Lawyers go into chambers
2:34 Attorneys are back. Judge said he made certain rulings in chambers. Doesn’t say what they are.
ADA continues. She asks about the sentence in the press release about “reconsider this decision”. DT thought it meant that he would reopen the case if there were more evidence.
Castor testified that he made a declaration he would never prosecute Cosby. DT did not request that. Why? If he took 5th we would have gone to the judge. If judge said that he could take it, we’d get a negative inference charge to the jury. Then there would only be AC’s version to the jury.
Filed civil lawsuit on 3/8/05. Received discovery from Cosby’s attorneys. Did you receive any indication that Castor said he would never prosecute Cosby? No.
Cosby was deposed over 4 days. Customary to put stipulations on the record. There were some. No mention by anyone of a promise not to prosecute Cosby. Would have expected that the agreement would be put on the record.
Cosby was not fully cooperative and forthcoming during the deposition. It was contentious. We had to file motions to compel, sanctions against his attorney. There was a lot of yelling, screaming, trying to divert our attention. It became more and more contentious. There were motions to compel regarding the sexual assault of AC.
There were maybe 50 questions he didn’t want to answer but he had to answer 46 or 47.
At one point, they just walked out of the deposition. Can’t remember what questioning was about at that moment.
Jack Schmitt was present. There were times they told Cosby not to answer. That involved the 40+ questions she had to go to the judge about.
Ever any mention by any of the attorneys that Castor said he would never prosecute. DT first learned in Sept. 2015.
July 10, 2015. DT received a letter from Ferman. Hand delivered to her—requesting a copy of our file and informing us not to tell anyone in order to protect the sanctity of the case.
Shown another letter that requested specifically the settlement terms that dealt with a criminal prosecution and her understanding.
Shown another document. It’s her response to Ferman and copied O’Connor. Attached portions of the confidentiality agreement. Also letter O’Connor sent to Ferman . DT agreed to let him respond to Ferman too. C-19 through C-22 are admitted.
C-21 is DT’s response to Ferman with the settlement terms re criminal charges. The negotiations with the settlement took about 3 months. One term was that Andrea release Cosby from criminal liability—which was a strange term. We struck that out. They wanted in there that she would not bring charges against him again. They wanted that she wouldn’t cooperate. I thought that was a violation of federal and state law for obstructing justice.
ADA clarifies that Cosby’s team wanted AC to promise not to bring charges against him again for the sexual assault. DT believes the lawyers realized they could not prevent someone from cooperating with law enforcement. They also wanted DT to destroy her file but she refused. Eventually they reach an agreement.
What was the language you agreed to? Constand agrees that she will not initiate any criminal prosecution.
Judge tells ADA that it’s completely inappropriate to call Ferman by her first name, Risa. She’s now a judge and was the DA.
DT responded on Sept. 24 ??? (not sure what talking about here)
Pursuant to a document request, her file could be turned over. That refers to law enforcement and does not include an exclusion of the Montgomery County DA’s office.
End of Direct
Cross by Monique Pressley
Retained to represent AC civilly, not criminally? Initial representation was Jan. 2005 and was prompted by the Autumn Jackson case. Later we signed a retainer for the civil case. Autumn Jackson had been arrested and was convicted. She was arrested in Feb. 2005 for trying to extort Cosby. Cosby injected money into this, AC didn’t. He wanted her to come to Florida. We felt this was another set up; that she’d be arrested and we didn’t want that. Feared she’s be convicted of extortion the way Autumn Jackson was.
There were two conversations with Cosby and AC’s mother.
We thought Cosby was setting her up because he had done this before.
DT: She’s not American. She didn’t understand our system. She didn’t know at first that we elect our DAs. I told her that I didn’t know him but that I thought Cosby would never be arrested because he would not hurt himself politically. When women came forward, we were amazed that he didn’t get arrested.
She filed the lawsuit against Cosby in 2005 on behalf of AC. When asked if she benefitted from the settlement, she said: “I certainly did,” to laughter in the courtroom.
DT disagrees there was litigation related to Constand after 2006—after the settlement—until July 2015. MP seems to insist that there were issues.
She provided the DA with her file in the civil case. There was one, maybe two, meetings before she provided the file a few months ago.
Shown letter (date?) – after discussions, Steele says he reopened the investigation. DT says she did the talking, not AC.
How did the DA know what became of the conversations with your client?
DT called and came to my office and said they were going to reopen the investigation provided my client agreed to cooperate.
He slammed her in that press release. She was a victim of sexual assault. Lawyers were asking if she had an orgasm, what was she wearing (not sure she means AC or other assault vicitms)…. 30 years later, we have a DA… OBJ.
*****My client was deeply hurt by the manner in which she was treated by Castor. She didn’t understand why he didn’t prosecute. It was traumatic to her and her family. Her mother is accused of illegal wiretapping. Mr. Steele came to my office and asked if she can get past this. *****
*****I called my client; spoke to her mother. This was very emotional. That is NOT how you treat an individual, any individual. ***** (DT is very emotional.)
They gave me the letter, I gave them the file.
MP: Did you inform them of the settlement requirement?
The first contact was whether she could get past what happened and cooperate with DA. The next was how the DA was to get my file. I didn’t want a search warrant. Told him what the agreement was so he then gave me a letter.
I was not prohibited from explaining to law enforcement how they could get my file. The settlement was 36 pages.
3:26 What more did you and your partner do regarding the investigation?
DT: I don’t really recall. They asked for something, I gave it to them.
Nothing in her file indicated there was a promise not to prosecute by Castor.
MP: You never had a discussion with Cosby’s attorneys about a promise not to prosecute?
It was not mentioned in 2005 by Castor or Phillips. I was not involved in any discussions.
MP: So you can’t say what Castor promised or not?
DT: I did not discuss with them or with Ferman.
Never talked to Phillips so she doesn’t know from him whether there was a promise.
No lawyer for Cosby ever mentioned there was a promise, ever.
In all my years, I never saw an attorney behave the way he did. (Talking about O’Connor.)
The reasons Cosby was instructed not to answer was never 5th Amendment. In a motion to compel, never based on 5th Amendment.
DT: I asked Mr. Cosby his recollection of what happened that night. O’Connor interjected and said let’s just read his police statement. I said no—I have a right to cross examine him. Court agreed with me.
Cosby’s attorneys never raised an objection based on possible criminal prosecution.
3:35 Break until 3:45
3:50 Judge is back. He’s the presiding judge and has postponed drug treatment court graduation. This case will finish tonight including the arguments. We are going forward until conclusion.
3:53 Bebe Kivitz, witness #2 for the Commonwealth
Goes through her educational background. ADA for 6 years including chief of trials. In 1990s joined a firm then in 2001 joined DT. In 2012 went elsewhere.
Her lawsuit on behalf of AC against Castor has nothing to do with her testimony today.
No one but BK and DT repped AC in Jan and Feb. 2005. She did have contact with police and DA. Did anyone from those offices inform you that Cosby would never be prosecuted. BK had contact with Ferman—limited to status of the case. Did not go to school with her—BK is much older.
No one ever told her that Cosby would never be prosecuted. First she heard of it was an article last year where he wanted to create an atmosphere helpful to AC. (He never said nice things about AC—NOTE: this last statement is paraphrased.)
****I read in several articles that Constand’s attorneys had agreed to it and that is absolutely not true.****
End of direct
3:58 Cross by Monique Pressley
I spoke to her a few days before in 2005 then I was with her when she first spoke to law enforcement. She wasn’t sure how to proceed, not familiar with US system.
Both went to UPenn. I’m 10 years older. I don’t believe we overlapped. Didn’t meet Ferman until 2002 when she was a defense attorney. They were adversaries at least 3 years before got the AC case. That case did not end until after the criminal investigation of AC’s case.
During pendency of the investigation, didn’t you know there would not be a prosecution from the DA, via fax?
I heard if from DT at the airport when she called me. AC learned in Canada from the press.
Does not believe that DT had received the fax yet.
There was no agreement not to prosecute Cosby ever, to her knowledge. She was not, however, privy to conversations between Castor and Phillips or Castor and Ferman.
****Ferman never called us to tell us about any agreement not to prosecute. Why would he (Castor) ever do something to help her (AC’s) case given the things he said about AC. ****
Cosby refused to answer plenty of questions and we’d file a motion to compel. He did declare the 5th. It took months to compel his testimony.
MP: Even when questions went to the details of AC, he still didn’t take 5th?
BK: He never invoked the 5th but he refused to answer many questions.
4:11 End of cross/no redirect
No more witnesses.
Judge: Now let’s get to the documents.
D-3 is the only one not admitted from the defense.
ADA Ryan objects to 1 through 12—hearsay. Argument on the newspaper articles used during the examinations.
Judge will admit them and use them for the purposes for which they were tendered.
More exhibits: 13 and 14 not moved into evidence. Ex. 15?
Going through additional exhibits.
Admits the stipulation which was read into the record and he has a copy of it.
Ex. 18—not admitted. It was used for anything.
Ex. 19-22. Admitted.
Anything to do with the federal civil case is to be removed. They did not come into evidence in this case. Judge doesn’t want documents related to seeking of documents per terms of the settlement.
Judge: Let’s finish the argument now on the non-prosecution. I am incorporating the entire arguments of the attorneys from earlier on what we were calling a demurrer.
4:23 Defense attorney Tayback:
After argument, we received a reply brief.
There are 4 basic arguments Commonwealth makes:
1) No agreement so nothing for this court to enforce. Defense response: there was promise. They can’t really dispute that though they dispute it collaterally. Castor’s is the only testimony of it.
2) While this isn’t a binding contract. Defense: It doesn’t need to be written or a contract. It need only be a promise on which one relies.
3) No promissory estoppel. Defense: They say there’s no reliance. On page 11, perhaps counsel failed in his duty and let him rely on Castor’s statement. Prosecutors have authority. So reliance on it was reasonable and it was a fact in existence.
4) This is really a suppression issue.
Was there a promise and did the defendant rely? If promise was non-prosecution, then enforcement is just that—no prosecution. Cites a case (Dunn?). In that case, prosecutor reneged on a promise to ask for the lowest sentence if defendant pled no lo. Court said you can’t do that. Dunn case was an oral promise but was on the record, in front of a judge.
The defense found no case that turns on it being in writing. It ‘s not a statute of frauds situation. Judge wants to know of cases that deal with an oral promise only.
The DA has grasped at straws to disprove what Castor said. They identified a single sentence where he says “caution all parties to this matter that he may reconsider” that deals with the civil case and publicity around it. He would speak out, if necessary.
Judge: What does it mean if it’s ambiguous? Two great lawyers interpret it in two ways. Ambiguity is part of contract law.
Defense: Ambiguity is construed against the Commonwealth. Why would he caution AC that he may reopen? That makes no sense. Issue of ambiguity is in our brief and I can find the page.
Addresses the suppression issue. Says it’s a red herring. The important thing is to construe what the promise is. If it’s non-prosecution, that’s one effect. If it’s non-use, that’s another effect.
Judge: Castor raised suppression last fall. He said it would be subject to suppression. If the non-pros was strong enough, why would he even mention it?
Judge goes back to the PC affidavit that includes evidence independent of the deposition testimony.
Def: Castor has been remarkably consistent in defending his decision. It was an inducement for him to sit for a deposition. He also suggested looking into perjury charges.
Gives cite that ambiguity should be construed against the Commonwealth.
Back to the reply brief by the Commonwealth. It argues that Castor’s testimony should be rejected. It strains credulity, they say. Prosecution wants you to make the decision on a credibility issue. They don’t have any indicia of bias. Castor is not on their side.
Judge: You could have called Ferman to say she heard Castor tell Phillips she overheard there would be no prosecution.
Defense: Clearly, they could have reopened it at any time. But no one did anything. That’s consistent with a non-prosecution agreement.
In every case we found that dealt with a promise by a DA stands for the proposition that the government is held to honor its obligation. That’s embedded in the law. Any defendant in any other case who had the DA come in and testify that he made a promise, would not be subject to prosecution.
End of defense
4:54 Steele argues
We are asking that you make credibility determination on this. When you look at the timeline, it clear to see where this has changed, where this has revised. It’s revisionist history at this point.
It’s a sovereign edict.
We’re asking for a credibility ruling and looking at fact there was no actual reliance.
You didn’t hear about reliance to his detriment. The person to testify to that is sitting there, in that chair. (Points to Cosby who bows his head.)
I don’t think this is confusing at all. Goes back to the comment in press release from page 2 about “reconsidering the decision.” Schmitt was trying to get into the settlement agreement that AC would absolve Cosby of all criminal liability. Why would you need that if there was a binding non-prosecution?
Castor told the Inquirer (date?) that he put in there if more evidence arose, he would revisit the decision.
Fast forward to last year where Castor is doing so many interviews, he can’t remember names. (KS says this sarcastically.)
BC is being asked about his decision because all these women are coming out. If Cosby took the 5th, what could BC do? There’s nothing he could do about it.
In D-5, he says the deposition will be subject to suppression—not that we couldn’t bring charges in the first place. Then another writing: I believed then and I still believe that a prosecution could go forward if there’s new evidence.
D-8, 11-25-15, 20:15 pm to Ferman
“I never agreed we would not prosecute Cosby.” KS: You can’t get clearer than that.
KS: “Then we get to his testimony yesterday. I suggest credibility is out the window.”
KS: “I suggest to the court that you rely on the express statements he made. There wasn’t actual reliance on this. There is consideration too.”
5:11 KS finishes.
Reliance is the issue. Kibbitz and Troiani both said he didn’t take the 5th. Today, Cosby has the right to remain silent.
The upshot of this argument is that BC came here and lied under oath. Judge stops him and says he never said that nor did KS.
If Castor wanted the easy out, he would have said he left it open to further investigation. Instead he came in here and said it was a promise never to prosecute.
BC said he would prosecute Cosby on other cases within the jurisdiction.
If this case turns on an election dispute, it’s a sad day for democracy and for criminal justice.
5:19 Judge is taking a brief recess and will make a decision. If he rules against Cosby he wants attorneys to be prepared to argue the motion to disqualify the Montgomery County District Attorney.
Decision on the habeas motion.
Based upon a review of all pladings and filings, exhibits and testimony, I find no basis to grant the relief requested. Motion is dismissed and denied.
Judge takes a brief break.
5:59 Judge is back on the bench
Wants to hear argument on Cosby’s motion to disqualify Montgomery County DA.
Brian McMonagle argues
It was an election issue for KS. Judge says he reviewed the ads, watched the link, read the motion many times, etc. No complaint filed with the disciplinary committee.
Statements poisoned the jury pool.
Judge: How do we know that?
BM: Prosecutors have a heightened responsibility. Prejudice is not just the tainting of the pool. As the campaign moved into its final weeks, KS injected into the race the ad we submitted that characterized Cosby as a sexual predator who should be prosecuted and would be prosecuted. “KS tweeted BC case hinges on small town election.” This was close to an express promise of – if you elect me, I promise to file charges against him.
That’s almost precisely what happened in Vermont. It was found to be improper. It was a clear violation of that rule.
Judge: That’s your only case.
BM: It is.
Judge: Why does it fall to the court to disqualify him?
BM: What is the public perception of why this prosecution was brought? Is it political? I submit that Mr. Cosby was a political football in the fall of 2015.
End of Defense
6:08 Steele argues
There is no place in that ad that alleges that anything would be done. It simply states the facts.
The case law is pretty straight forward. Concedes that some cited cases are problematic but they are not on point with this case.
An evaluation is done based on the facts, put into a criminal complaint which is signed off by a judge. The testing of this case is through the criminal justice process. Let’s go into a court and evaluate the facts. Let’s see if an impartial jury can be found. There was no promise.
As for the retweeting, I think I did one tweet and that was with help.
A criminal defendant does seek special treatment when he seeks to pick his prosecutor or go somewhere else.
If you take out the name, people would be aghast that this election hinged on a promise to prosecute.
The judge has studied this issue long and hard. The argument underscored the claims made. The court finds there is no misconduct that is cognizable under the rules. Motion is denied.
Judge will issue a formal order. But it’s 6:15 and will not be a docketed order. Judge denies the defense request for a findings of fact because he is not required to do so.
This now clears the way for a preliminary hearing.
3/8 is the preliminary hearing
This is not before O’Neill. It’ll be before a different judge–a magistrate, Elizabeth McHugh.