A Legal Bombshell Could Wreck The Criminal Case Against Bill Cosby

An agreement purportedly made ten years ago by a former prosecutor could mean the end of the criminal charges against Bill Cosby.

Bill Cosby

Just days before the close of 2015 and the expiration of the statute of limitations, entertainer Bill Cosby, who has seen his reputation utterly destroyed over the course of the past year in the face of seemingly irrefutable allegations that he had been drugging women for the purpose of having non-consensual sex with them since the 1960s, was charged with sexual assault in connection with an incident in 2005 in which he gave a woman named Andrea Constand a drink spiked with some drug and had sex with her. Given that this was the most recent incident that anyone was aware of, it was seemingly the only one for which Cosby could face criminal liability. This morning, though, CNN revealed an agreement made when the charges of the attack against Constand first came to light that could end up barring the charges from going forward and which at the very least is like to lead to a significant pre-trial litigation:

A former district attorney in Montgomery County, Pennsylvania, claims he agreed more than a decade ago that his office wouldn’t use a civil deposition given by Bill Cosby in any criminal matters, an email obtained by CNN shows — a revelation that could call into question the viability of the criminal case against the comedian.

The 2015 email — sent by former District Attorney Bruce Castor to successor Risa Vetri Ferman — details an apparent verbal agreement the prosecutor had a decade earlier with Cosby’s attorneys for Cosby to testify in a civil sexual assault case brought against him in 2005. In the email, Castor writes that his intent in making the deal was to create an atmosphere in which Cosby accuser Andrea Constand would have the best chance of prevailing in her civil suit against the 78-year-old comedian by removing the prospect of Cosby invoking his 5th Amendment right.

The email was sent three months before criminal charges were filed against Cosby in Montgomery County in December, and could call into question the viability of the case, CNN has learned.

In it, Castor writes to Ferman: “I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression.

“I cannot believe any state court judge would allow that deposition into evidence. …. Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.”

The deposition is a key piece of evidence, cited by prosecutors as the impetus for reopening the case.

At the center of the case are allegations made by Constand, a former Temple University basketball employee, who says Cosby sexually assaulted her in his home in 2004.

Dolores Troiani, an attorney for Constand in 2005, told CNN’s Jean Casarez on Friday that she never knew about any such agreement between Cosby’s attorneys and prosecutors.

Castor, when asked by CNN about the email, declined to comment.

The current district attorney, Kevin Steele, who was elected in November after serving as Ferman’s longtime top deputy, told CNN on Friday: “There is a specific legal method to grant immunity. That was not done in 2005.”

Steele also noted that in Castor’s 2005 press release declaring there was insufficient evidence to prosecute Cosby that Castor himself said he would “reconsider this decision should the need arise.”

In essence, what former District Attorney Bruce Castor is saying is that he entered into an agreement with Cosby’s attorneys back in 2005 when Constand first made her allegations against Cosby and took the first steps toward filing a civil suit against the entertainer. Allegedly, at that time a deal was made in which Cosby would agree to testify in a deposition taken by Constand’s attorneys and the authorities made an agreement that resulted in Cosby agreeing not to assert his Fifth Amendment rights in the deposition. It’s unclear from the email as described exactly what this 2005 agreement between Castor may have been, though. It is being described as an “immunity agreement,” which would mean that the District Attorney was essentially agreeing to grant Cosby immunity in exchange for his agreement to testify under oath in the deposition without asserting his Fifth Amendment rights, which would mean that criminal charges could never possibly be brought against the entertainer. The quoted provisions of the email in the report, though, make it sound more as if Castor had agreed that he would not use the deposition as evidence against Cosby if there was a criminal prosecution at that time or at any time in the future. An immunity agreement, of course, would make the current prosecution of Cosby impossible if a Judge were to find that it is binding while the second would make such a prosecution far more difficult since it would preclude the prosecution from using Cosby’s admission in the transcript of what he did to Constand against him in trial whether he chose to testify in his defense or not. This wouldn’t necessarily prove fatal to the case, of course, but it would allow for a far easier argument in favor of reasonable doubt than if the deposition were admitted to evidence.

There are, of course, several questions about this entire alleged agreement that could tie up the proceedings in the case against Cosby for some time to come. For one thing, it will need to be made clear just what kind of agreement Castor is talking about in his email. Is it an alleged immunity agreement, or is it an agreement to not use the deposition as evidence at trial? Part of determining the answer to that question, of course, would have to involve determining if there was in fact an agreement at all. So far, all we’ve got in that regard is an email that Castor wrote to his successor three months ago where he describes the agreement and warns that he doesn’t believe that criminal charges can be sustained against Cosby because of the agreement he made in 2005. Is there any written memorialization of this agreement that was made at the time? The best form of such a memorialization, of course, would be something signed by Castor and at the very least Cosby’s attorneys setting forth exactly what the agreement was, but from the content of the report it does not appear that such an agreement exist. Barring that, an email or even a note to the prosecutors file setting forth what had been agreed to would at least establish that there had been some agreement back in 2005 that convinced Cosby’s attorneys to let him testify under oath notwithstanding the fact that he was obviously exposing himself to criminal prosecution. What all of that meant, and what it would mean for the criminal case now pending against Cosby, would be up to a Judge to decide.

At the very least, this news seems guaranteed to send the case against Cosby into some degree of chaos. At some point before trial, a Judge will be required to make a determination about whether or not there was an agreement and what that agreement meant. That issue would no doubt be subject to appeal since it is obviously an issue that needs to be resolved before the trial can be allowed to proceed. Given all of that, it could be quite some time before Bill Cosby actually stands trial for these charges if he ever actually does.

FILED UNDER: Crime, Entertainment, Law and the Courts, Popular Culture, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Ron Beasley says:

    His reputation has already been ruined which is something he will have to live with for the rest of his life. To a person like Cosby probably more painful than a trial or prison time. It will cost him money. All of his old TV shows have been pulled from syndication and all of his performances have been cancelled.

  2. Just 'nutha ig'rant cracker says:

    @Ron Beasley: Apparently not all, at least so far. I just saw a notice yesterday for an appearance by Cosby at the Schnitzer concert hall in Portland later this year.

  3. Gustopher says:

    As a non-lawyer, if strikes me as very surprising that an agreement would be made to give criminal immunity in a civil case. Is that a common practice? And as a verbal agreement?

    Doug doesn’t comment on it (unless I skimmed too quickly), which makes me think that he isn’t particularly surprised, and we all know he is a lawyer.

    Was Cosby given preferential treatment during the civil case? Or was he just very well served by his lawyers?

  4. @Gustopher:

    The argument would be that the DA gave Cosby immunity from criminal prosecution to persuade him to testify in the deposition in the civil case. Cosby could have plead the fifth in the deposition if his lawyers thought it advisable. Personally, I tend to find it more likely that there may have been an agreement from the DA that he would not use the deposition in any criminal prosecution, not an agreement that he wouldn’t prosecute at all. Otherwise, the fact that Cosby’s lawyers let him testify rather than plead the Fifth — and yes you can plead the Fifth in a civil case if your testimony could subject you to criminal liability — makes no sense and a person of Cosby’s means likely doesn’t hire lawyers that would make a fundamental mistake like allowing him to testify without some kind of understanding about the Fifth Amendment issues.

  5. Peacewood says:

    @Doug Mataconis: The thing that really strikes me about the deal, as Gustopher noted and you didn’t seem to address, is that it was not in writing. A verbal handshake.

    How common is this? And if verbal, how in the world is it enforceable? It strikes me as unwise.

  6. CSK says:

    Well, the existence of the emails would constitute some written proof that the “handshake deal” had been made, wouldn’t it?

  7. Davebo says:

    Perhaps Harvardlaw or another attorney can explain the implications of this.

    It does seem odd for a DA to get involved in a civil suit. The current DA seems pretty confident the deposition will be admitted.

    Frankly, if it went down as reported I’d say Cosby got screwed by his expensive lawyers.

  8. @Davebo:

    The current DA seems pretty confident the deposition will be admitted.

    Even if it does, it could create problems, as it will become much harder for him to make deals in the future if opposing lawyers no longer trust the office to follow through on them.

  9. PD Shaw says:

    “Personally, I tend to find it more likely that there may have been an agreement from the DA that he would not use the deposition in any criminal prosecution, not an agreement that he wouldn’t prosecute at all. ”

    Not only more likely, I think that is precisely what the former DA is saying. The current DA’s response that this is not how we do immunity agreements sounds like obfuscation.

    I think the other issue is that if there was an agreement not to use the deposition, not only can the deposition not be used, but I believe the prosecutor will be required to prove an independent basis for any other evidence against Cosby.

  10. David in KC says:

    I find it odd that there was nothing in writing detailing the agreement. If, God forbid, the DA had been in a car accident or otherwise met an untimely end, there wouldn’t be any direct evidence at all of any agreement. If Cosby has a high powered legal team, that seems to be a glaring hole in their abilities.

  11. @Peacewood:

    The lack of some written memorialization of any agreement in this context would be unusual, but it wouldn’t necessarily mean that there isn’t an agreement or a promise by the DA that a Court would enforce. As I said in the post, it’s possible that there was some exchange of correspondence that recited the agreement, or it’s possible that the DA at the time made a note in his file regarding what he had agreed to. This is all going to be up to the Judge to try to sort out.

  12. PD Shaw says:

    @Davebo: It’s not that odd. Civil litigants may be denied the opportunity to prove their case because the defendant is hiding behind potential criminal proceedings that may never be brought. A sympathetic prosecutor might agree not to use testimony that would not otherwise occur anyway, in order to allow the victim a better opportunity to pursue their case. The prosecutor doesn’t lose anything.

  13. Mike says:

    If the DA doesn’t think they have a case and doesn’t plan on charging the person then he might have done it to prevent backlash from the alleged victim – if the DA says “look, I don’t have enough to charge him and win, but I will help you in your civil suit by agreeing to transactional immunity so he can’t take the 5th” The DA might not have wanted it in writing for fear someone would waive it in his face at his next election. Cosby may not have wanted it in writing for fear that someone would find out and waive it around saying “why does Cosby need immunity – what did he do?”
    Just speculating – who knows at this point.

  14. Davebo says:

    @PD Shaw:

    The prosecutor doesn’t lose anything.

    Well obviously in this case the prosecutor may have cost his office quite a bit and done so in service well outside his responsibilities.

    We’ll see how it works out. Right now what we know is the plaintiff’s attorney says she knows nothing about any such agreement which is more than odd all things considered and the former prosecutor appears to be unwilling to comment publicly.

  15. JohnMcC says:

    How long do we have to wait before learning whether the glove fits or not?

  16. PD Shaw says:

    @Davebo: “service well outside his responsibilities.”

    I don’t agree with that. Prosecutors are the only people with authority to grant testimonial immunity. Its his/her responsibility to grant it when in the public interest, so long as it won’t compromise the State’s own investigation.

    “the prosecutor may have cost his office quite a bit”

    The only cost appears to be if the prosecutor made the deal and didn’t memorialize it sufficiently so that the deposition wouldn’t contaminate the rest of the case. Again, if he hadn’t agreed to it, there would have been no deposition.

  17. PD Shaw says:

    After reading countless cases where the prosecution says it couldn’t find or lost evidence it was obligated to turn over to the defendants, I am not at all shocked that the prosecutor’s office has a paperwork problem.

  18. Pch101 says:

    @Gustopher:

    Prosecutors like to take on cases that they can win, and to not pursue those with less than outstanding odds.

    It sounds as if the prosecutor wasn’t confident about the strength of his criminal case, but that there was enough ammunition to induce a settlement in a civil case, so he did what he could to facilitate the latter. Getting that ammunition entailed swapping the criminal charge for the waiver of the Fifth in the civil case, which provided the evidence that could increase the odds of settling the matter out of court.

    From the prosecutor’s standpoint, he obtained some justice for the victim while avoiding the risk of a loss that would impact his own track record.

  19. HarvardLaw92 says:

    @Davebo:

    This doesn’t qualify as a grant of immunity, IMO. The former DA simply agreed not to use the deposition in any future prosecution. The agreement, if held to be binding (I believe that it likely would be) binds the office, not the individual. Under that scenario, no judge is going to allow the deposition, or any subsidiary evidence stemming from the deposition, into evidence. It would wreck the core of the states case, probably render it dead in the water. If jeopardy has attached, that’s the ballgame.

  20. peter says:

    @Doug Mataconis: i guess the new prosecutor cant just ignore this deal by a previous prosecutor

  21. Robin Cohen says:

    Somehow it always seems as though the guilty have our legal system, State or Federal, on their side.

  22. Guarneri says:

    @PD Shaw:

    That’s unsettling. All the more reason to formalize an arrangement a copy of which Cosby’s counsel can put in the safe?

  23. JKB says:

    Wasn’t this deposition sealed? Then whoever sued to get it unsealed has really damaged any chance of prosecution as any evidence found after it became available will have to be shown to be independent of the deposition.

    From the start, this sounded like a newly elected prosecutor grandstanding and now the grandstand is being cut out from under him because he didn’t do diligence on the case.

    In any case, as I said, Cosby has the money to keep this “prosecution” at bay until he succumbs to old age.

  24. @peter:

    If the previous prosecutor made an agreement it is binding on him and his successor(s).