Pennsylvania Judge Refuses To Dismiss Charges Against Bill Cosby Due To Immunity Agreement

A Pennsylvania Judge has refused to dismiss sexual assault charges against Bill Cosby based on an alleged 2005 Immunity Agreement.

Bill Cosby

A Pennsylvania Judge has denied a request to dismiss the sexual assault case against Bill Cosby based on an alleged agreement made in 2005 to grant Cosby immunity in exchange for his testimony in a civil case:

NORRISTOWN, Pa. — The sexual assault case against Bill Cosby can proceed, a judge ruled on Wednesday, saying that prosecutors are not bound by a predecessor’s decision 11 years ago not to charge Mr. Cosby in the case of a young Temple University staff member who said the entertainer had drugged and molested her at his suburban Philadelphia home.

Mr. Cosby’s lawyers had sought to have the charges dismissed, arguing during the pretrial hearing before Judge O’Neill that former Montgomery County District Attorney Bruce L. Castor Jr. had made a binding decision in 2005 never to prosecute Mr. Cosby.

“A promise of a prosecutor, even an oral promise, is absolutely 100 percent enforceable,” Christopher Tayback, one of Mr. Cosby’s lawyers, told Judge O’Neill.

In testimony on Tuesday, Mr. Castor had said he, too, viewed his decision as binding, but the judge disagreed. Although he did not elaborate on his decision, the judge appeared to side with prosecutors, who argued on Wednesday that the former district attorney had not been authorized to make such a sweeping edict.

“There is no legal authority allowing a district attorney unilaterally to confer transactional immunity,” the current district attorney, Kevin R. Steele, told the court Wednesday.

After the ruling, Mr. Cosby sat in his chair motionless, looking ahead and stroking his neck. His lawyers and an aide immediately surrounded him, some with their hands on the back of his chair.

Based on the ruling, the case will now head toward trial, and the judge set a date for a preliminary hearing on March 8. But Mr. Cosby’s spokesman, Andrew Wyatt, said that Mr. Cosby would appeal the judge’s decision.

At some point, his lawyers may well file a motion to suppress the testimony that he gave in a civil suit later brought by the woman, Andrea Constand, in 2005.

Prosecutors have cited the deposition given by Mr. Cosby in that case, parts of which became public only last summer, as key evidence. In the deposition, the entertainer acknowledged obtaining quaaludes as part of his efforts to have sex with women.

A lawyer for Mr. Cosby testified Wednesday that he only allowed him to testify in the civil case, without invoking his Fifth Amendment right, because of Mr. Castor’s promise of immunity.

In her account of what happened on one winter night in 2004, Ms. Constand said she began feeling drained at Mr. Cosby’s home in the Philadelphia suburbs, and he gave her three pills and some wine to help her relax. Soon, she said, her vision blurred, she had difficulty speaking and Mr. Cosby led her to a sofa, where he touched her breasts, penetrated her vagina with his fingers and placed her hand on his erect penis.

Mr. Castor testified Tuesday that, while he believed Ms. Constand’s account, he had declined to prosecute because he questioned if she would make a credible witness.

He cited contact between Ms. Constand and Mr. Cosby in the year between when she said the incident occurred and when she went to the authorities, including at least one in-person meeting and phone calls between Mr. Cosby, Ms. Constand and her mother, some of which, he said, had been recorded illegally.

But Ms. Constand’s lawyers, who testified on Wednesday, have said that Ms. Constand and her mother only contacted Mr. Cosby once about the alleged incident, in two phone calls in January 2005.

Mr. Castor said he had hoped that by announcing his decision to not prosecute Mr. Cosby, he would help Ms. Constand get a measure of justice — and money, in the civil case.

Mr. Castor and the sitting district attorney, Mr. Steele, ran against each other in an election last fall, and Mr. Steele’s criticism of how Mr. Castor’s handled the original Cosby investigation became an issue in the race. In court papers, Mr. Cosby’s lawyers said Mr. Steele charged Mr. Cosby only to fulfill a campaign pledge and sought to have him dismissed as the prosecutor in the case, but Judge O’Neill denied that request on Wednesday as well.

Mr. Steele on Wednesday criticized Mr. Castor’s use of Ms. Constand’s potential lucrative settlement in a civil case as rationale for not prosecuting Mr. Cosby.

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right,” he told the court.

But Mr. Tayback argued that Mr. Cosby had never acted like a star seeking special treatment in challenging the case. “He is looking to be treated in exactly the same way any other person would be looking to be treated in this situation,” he said.

(…)

In questioning one of Mr. Cosby’s lawyers involved in the 2005 case, Mr. Steele referred to Mr. Castor’s testimony on Wednesday.

“You would agree with me,” he asked the lawyer, John P. Schmitt, “that you never obtained a written agreement from the Commonwealth, from Mr. Castor, that your client would never be prosecuted?”

Mr. Schmitt said, “I have a signed statement.”

To which Mr. Steele replied: “You have a press release.”

Judge O’Neill said that the issue of whether one prosecutor could bind his successors to a decision had rarely surfaced before. “I was unable to find any case like this,” he said, shortly before issuing his ruling in the case.

It doesn’t appear that Jude O’Neill issued a written ruling in this case, although perhaps that will happen in the future. In a criminal case, it’s generally the case that a ruling as important as this one will be reduced to writing if only to ensure that there is a complete and accurate record in the case in the event of an appeal. In any event, as I noted when this matter was first raised last month there was plenty about this agreement that was odd to begin with. For one thing, ordinarily an immunity agreement such as this is typically reduced to writing and signed by both sides involved, which in this case would have been the prosecutor in 2005 and Cosby’s attorneys. Alternatively, the terms of an agreement such as this can be laid out on the record in court before a Judge, either in open court or behind closed doors, with a court reporter taking down the terms of the agreement and note the agreement of the parties involved. In this case, it appears that the entirity of the agreement was the representation of the prosecutor to Cosby’s attorneys that he would not pursue charges against Cosby if he testified in a deposition taken by the attorneys for the woman who is the victim in the case now pending against him. In exchange, Cosby’s attorneys say that they would not have allowed their client to testify without this promise from the prosecutor. As a matter of pure contract law, there are circumstances in which this promise, followed by the reliance on the promise by Cosby and his attorneys, would be sufficient to create a binding contract that would bind not only the prosecutor who made the promise, but also his successors in office. That’s a private contract, though, and not an agreement related to criminal  charges and, as I noted last month, it’s unclear if Pennsylvania law would allow such an oral promise to bind future prosecutors. The judge in this case determined that the answer to that question is no, but it’s notable that there does not appear to be any Pennsylvania law that’s completely on point with the facts in this case. At the very least, this means that this issue is likely to be appealed and, since the admissibility of Cosby’s deposition is a matter that will have to be resolved before the case can go to trial, that means that the trial itself will likely have to be delayed while the matter is appealed, perhaps all the way up to Pennsylvania’s Supreme Court.

None of this is to dismiss the seriousness of the charges against Cosby, of course, or the overwhelming nature of the claims against him that makes it seem clear that this is a man with a long history of taking advantage of women and getting away with it. Notwithstanding those facts, though, Cosby is as entitled to have his rights protected as anyone else charged with a serious crime. That includes having the protections of an agreement that he and his attorneys may have relied upon in agreeing to testify in a civil case ten years ago. Ordinarily, Cosby could and probably would have asserted his rights under the Fifth Amendment rather than answer the questions. The fact that he didn’t suggests strongly that, as far as his legal team was concerned, they had an agreement not to prosecute from the proper authorities. For them to be be told now, ten years later, that there was no agreement and that the deposition they agreed to in reliance on the prosecutors promises, that there was no such agreement seems problematic, especially since that deposition may not potentially be used as evidence against Cosby in a very serious case. As I said, hopefully the appellate courts in Pennsylvania will deal with this matter soon and come to a definitive answer regarding the enforcability of such agreements. Something tells me there may be other potential Defendants out there who would be interested in how the matter is resolved.

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. This ruling is likely to end up being “penny wise and pound foolish” on the part of Mr. Steele. Establishing a precedent that DA agreements aren’t binding on future officer holders is going to severely impact the office’s ability to plea bargain, and most DA’s offices don’t have enough manpower to function if every case ends up going to trial.

  2. Gromitt Gunn says:

    By the time the State Supreme Court resolves this, how the heck will it be possible to find enough citizens of Pennsylvania who don’t have an opinion on the case to impanel a jury? Especially if the 2005 testimony is thrown out, but anyone with a TV knows that Cosby admitted to giving women qualudes in order to get sex?

    I’ve served on juries twice now. I am a smart guy, and I would like to think that tried to be as unbiased and objective as I could be, and not let my personal impressions of the defendant enter into the deliberations.

    I don’t think I could serve on that jury. Even if prior testimony is ruled inadmissible, I know it exists. An admission, in his own words. There is no way that I could set aside my knowledge and not envision him spiking the drinks of my nieces, my friends, my mom, or my sister during deliberations.

  3. Grewgills says:

    @Stormy Dragon:
    Or attorneys for defendants will be certain to get valid agreements in writing rather than accepting unrecorded verbal agreements in hallways.

  4. wigglwagon says:

    @Gromitt Gunn:

    Gromitt Gunn says, “anyone with a TV knows that Cosby admitted to giving women qualudes in order to get sex?”

    That is not what he said. He admitted giving them ludes during the process of having sex. The women knew exactly what they were doing.

    It was a business deal. The girls were selling their CHARMS for a chance at becoming a super rich super star. It takes two to tango.

  5. Slugger says:

    To an ordinary citizen who is not a legal mind, the whole plea bargaining thing seems distasteful. Sometimes it means that someone guilty of a serious wrong skates by being able to plead guilty of something minor. Sometimes it seems that it is used to buy or coerce the testimony of a small participant in order to get a Mr. Big, but that seems inherently corruptible. I understand that perfect Justice is not achievable on this earth, and plea bargains are needed to make things run. It just doesn’t feel good.
    In the Cosby case what did the people of Pennsylvania get? If it is a contract, there has to be a quid pro quo.

  6. JKB says:

    @Grewgills:

    Apparently, according the current District Attorney, no agreement, oral or written, is valid until concurrence is given by a court. Or maybe he’s just saying they have to take a vote in the DAs office? In any case, no defendant should but any trust in any thing the prosecutors in PA supposedly agree to anymore.

    “There is no legal authority allowing a district attorney unilaterally to confer transactional immunity,” the current district attorney, Kevin R. Steele, told the court Wednesday.

  7. OzarkHillbilly says:

    That includes having the protections of an agreement that he and his attorneys may have relied upon in agreeing to testify in a civil case ten years ago.

    Question: Why didn’t Cosby’s lawyers just produce and file the agreement with the court? Oh wait a minute, they didn’t have one.

    Ordinarily, Cosby could and probably would have asserted his rights under the Fifth Amendment rather than answer the questions. The fact that he didn’t suggests strongly that, as far as his legal team was concerned, they had an agreement not to prosecute from the proper authorities. were complete and utter incompetents.

    FTFY, Doug.

    For them to be be told now, ten years later, that there was no agreement and that the deposition they agreed to in reliance on the prosecutors promises, that there was no such agreement seems problematic,

    For Cosby and his legal team. Seriously, IANAL and I don’t play one on the internet but, how stupid does one have to be to not get such an agreement in writing? Signed by the lawyers AND the judge? Just to be sure???

  8. OzarkHillbilly says:

    @wigglwagon: Your complete and utter ignorance drips from every single one of your words. You know nothing at all of Qu@@ludes, do you?

  9. OzarkHillbilly says:

    @Slugger: Not to mention that a not insignificant # of plea bargains are given to people who plain and simply can not afford a lawyer or even bail. They have a life to live and are coerced into a guilty plea based solely on the fact that they can not afford to spend any more time in jail. Or they decide against the gamble that their under paid, under staffed, overworked Public Defender has a prayer in hell of winning against the well funded, well staffed DA’s office which, when found guilty, WILL result in a significantly longer sentence.

  10. @Slugger:

    In the Cosby case what did the people of Pennsylvania get? If it is a contract, there has to be a quid pro quo.

    Without the agreement, Cosby would have been able to refuse to be deposed in the civil trial on fifth amendment grounds. The prosecutor didn’t feel there was sufficient grounds to support a criminal conviction, but didn’t want to block the victim’s ability to seek civil restitution.

  11. PD Shaw says:

    The reporting is talking about “transactional immunity,” but I think from the information Doug linked to earlier the context was clearly “use immunity.” Transactional immunity would require the charges to be dismissed. Use immunity would mean that the prosecution is barred from using the deposition.

    A motion to dismiss charges could be brought at any time, the sooner the better, but I’m not sure whether a motion directed towards what evidence can be used is necessarily ripe at the outset.

    I also wonder if the press release was so suggestive of transactional immunity, the defense took a swing at that first. In any event, I don’t think we’ve heard the last of this issue. We’re pretty close to the judge being flat-out-wrong on use immunity or Cosby’s attorneys committing malpractice. Which is more likely?

  12. OzarkHillbilly says:

    @PD Shaw:

    The reporting is talking about “transactional immunity,” but I think from the information Doug linked to earlier the context was clearly “use immunity.”

    I read a lawyer somewhere else bring up that exact issue and she was saying there was no apparent reason why the prosecution could not be barred from using the deposition and that was the obvious next step for Cosby’s lawyers.

  13. bill says:

    i don’t think they could get a jury to convict him, it’s just pandering to new found “feminists” and the “buyers remorse” crowd of star f*ckers.

  14. Keith Grayson says:

    During the 70’s in West Los Angeles, Beverly Hills, Bel Air, 90210 zip code of Los Angeles, the popularity of Quaaludes rivals that of Ambien today, everybody had them, I had a prescription for Quaaludes and Dextramphetamine from 1 Doctor filled out at 1 Beverly Hills pharmacy.
    What malady could require this combination of drugs who knows?
    I know nobody made a big deal about it, Cocaine was a far more prevalent and far more persuasive drug with which to manipulate someone to do something they might regret later on.
    Free basing is called Crack when the South Central LA people were rocking up powder cocaine with baking soda and water. You could have really had a heck of a time, just ask Rick James! Quaaludes are huge, about the size of 3 Excedrin’s! I would think that was hard to slip to anyone, especially since you need 3 to get high! and you do not pass out like Visine in a drink will do , or Reds or Booze most typically, Booze has incapacitated more women who were taken advantage of then Quaaludes were, They were known for making girls horny and a Spanish fly type of enhancement, not a date rape drug like Rohypnol or Ketamine .
    Try to locate any place else where Quaaludes are described as a date rape drug, if so Valiums surely would be too! And the fact that EVERY woman has stated that QUAALUDES were used and blaming them is a dead give away these women are repeating a tale that only evidences an obvious conspiracy. If you ever are involved in a probate for a few million dollars you will see Sisters shoving brothers under the bus happily! so do not think this is without motive for lying.
    My Uncle was an actor from the 50’s to the late 80’s, He was in “A piece of the action” film with Mr Cosby, My Uncle had a 1967 AC Cobra and Mr Cosby liked it even asking Carroll Shelby to make him one. They used to be seen at the Daisy club and the Candy store and Pips, all celebrity laden clubs where the most beautiful girls would come to hope to meet a star or advance a career, Bill Cosby was very popular and he had no reason to rape women nor need to do so,he was approached by more women then you could imagine, and they were not ugly women like every one I have seen!

  15. Keith Grayson says:

    @OzarkHillbilly: I am quite sure the reason was it might be used as evidence in the future, there is no other reason here. The fact the promise was made as admitted should be enforceable, the judge went beyond his power now and this will lose.

  16. Keith Grayson says:

    @OzarkHillbilly: I know of 2 friends who had girlfriends lie about domestic cases and both of them went up to jury selection and chickened out and admitted to being felons when they would have won in trial, or so you think, are you so sure even when innocent the results will be innocent or 9 years! It’s rotten.