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Feb 03 2016

Judge Rules Cosby Case Can Go Forward

Bill Cosby, long-beloved American comedic icon and serially-accused serial rapist, is finally having his day in court. After his long denying the accounts of dozens and dozens of women who have made claims that he sexually assaulted them, one of those accusations is about to be heard in open court for a jury to determine its validity and his guilt. A judge has now ruled that a quirky deal made by a former DA cannot stop this prosecution.

It seems that way back in 2005, when then-Montgomery County Pennsylvania District Attorney Bruce L Castor had these accusations in his office felt there was “insufficient evidence” to bring charges. And the potential charges were serious. Mr Cosby’s accuser, a Temple University basketball manager, claimed that Cosby had drugged her and sexually assaulted her at his home. The accuser also had filed a civil suit against Cosby. So apparently, the DA and Cosby’s lawyers struck a deal: The DA would not prosecute Cosby if Cosby agreed to testify truthfully at a deposition in the civil case. Castor has said he felt this would give “some measure of justice” to the complainant. The only problem is that no one put the agreement in writing. Cosby’s then-criminal lawyer is now dead and cannot give his understanding of the deal. Castor has now taken the stand to say that his understanding of the deal was that Cosby would be given immunity from prosecution “for all time.” And that does make sense. I know I would never let a client facing such serious criminal charges testify at a civil proceeding without full and final immunity. But I would also never let such an important deal rest with a handshake. I would demand it be memorialized in writing. Its very odd indeed that Cosby’s lawyer did not get it writing.

Montgomery County Judge Steven T. O'Neill

Montgomery County Judge
Steven T. O’Neill

But if the DA says that was the deal, and the lawyer is now dead, who’s to say otherwise? Cosby having testified in the civil case is also proof that he felt the deal was in place. He admitted illegally acquiring Quaaludes and giving them to women in order to have sex with them. He admitted that he offered to pay for the young women’s education (provide she maintained a 3.0) after her and her mother demanded to know what drug she had been given. Would he ever make those admissions with the threat of a criminal prosecution hanging over him? Is it fair to Cosby now that he held up his end of the bargain, that the deal he made be pulled out from under him?

But Judge Stepehn O’Neill decided an oral agreement of this nature cannot be enforced, particularly since it was made before Cosby was even charged – in other words, no case was actually pending. Current DA Kevin Steele – who defeated Castor in the most recent election for DA at least in part relying on ads that blamed his handling of this matter – had his hands full with this issue. He argued that it was against public policy to allow a DA to merely testify that he had given such broad immunity without anything in writing to declare the terms of the agreement saying:

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

The next issue will be whether the DA could use the civil deposition testimony in the criminal trial. Without the deal, his lawyer could have made a motion to freeze the civil case until the criminal case was over. That procedure is common when a criminal case and a civil case over the same occurrence are on-going at the same time. So I think its pretty clear what the parties intended the deal to mean and I think it would be wrong to use the civil deposition in the criminal trial. Interestingly, new DA Steele stated he revived the case based on “new information and evidence” obtained. While he has not specifically stated what that new evidence consists of, most assume it is the deposition. So how would that be fair to Cosby? A DA promises him not to prosecute him if he testifies at a deposition, so he testifies, and then another DA down the road uses that deposition to prosecute him. That just ain’t right. Cosby may indeed be the sleazebag he appears to be, but that still ain’t right.

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