Bruce Castor outside of the courtroom on the first day of a hearing in which the judge ruled the case against Cosby could proceed.

Bruce Castor outside of the courtroom on the first day of a hearing in which the judge ruled the case against Cosby could proceed.

Michael Mercanti/Pool photographer Cosby hearing

Bill Cosby’s hearing: How the D.A. who never prosecuted him used his time in the spotlight (analysis)

If a judge believes Bruce Castor’s words about a promise, a press release and other facets of the case he explained over several hours Tuesday, it could mean Bill Cosby won’t face a trial.

A good portion of Tuesday’s Bill Cosby hearing, probably close to two hours, centered on a press release. It wasn’t exactly the script one would expect on the first main court day for an international celebrity, but it’s the one Bruce Castor delivered. And boy, what a performance this was.

Castor, then the district attorney of Montgomery County, had authored and sent the press release in February 2005 (via fax because at the time he didn’t know how to attach a document to an email). In it, he explained why his office would not be prosecuting Cosby for the alleged sexual assault of Andrea Constand, or so it seemed on the surface. He said Tuesday he made sure the press release also revealed between the lines further criminal action couldn’t be taken against Cosby and that by signing it with his official title he was making it known this was an official edict from the Commonwealth of Pennsylvania that transcended his title and would last forever.

“I am the sovereign,” he said, “of Montgomery County, Pennsylvania.”

And if a judge believes Castor’s words about that press release and other facets of the case he explained over several hours Tuesday, it could mean Cosby won’t face a trial for the sexual assault of Constand, a former basketball manager at Temple.

That judge, Steven O’Neil, said he plans to make a ruling Wednesday. So for one more day a dozen or so TV trucks will surround the Montgomery County Courthouse, and Cosby will be joined by a bodyguard reminiscent of a Secret Service man, down to the sunglasses he never removed, even inside the courtroom. Despite the celebrity trappings, the hearing Tuesday came down entirely to Castor, whose claims of granting verbal immunity to Cosby seem even stranger after hearing him testify.

The clearest part of Castor’s many statements was his belief that Cosby could not ever be prosecuted by the Commonwealth of Pennsylvania for this incident of alleged sexual assault. He said in 2005 he decided the case against Cosby could not be successfully prosecuted because of issues with Constand ranging from the year she waited to go to the police to the possibility that she and her mother had illegally wiretapped phone conversations with Cosby and asked for money. Castor said he figured the best way for Constand to get any redress would be through civil courts.

This is where the crux of this current ordeal begins. Castor then decided he would verbally grant immunity for Cosby so he could not use the Fifth Amendment to dodge submitting a deposition in a possible civil trial. He said Cosby’s lawyer, Walter M. Phillips Jr., also thought this particular legal assessment was legitimate but didn’t make any “agreement.” Castor claimed his decision was made not simply as district attorney but rather as a “sovereign” of the state, meaning he was acting for Pennsylvania and binding the decision for all time.

“There wasn’t any quid pro quo here,” he said. “This was a definitive statement by the Commonwealth.”

Cosby trial
Michael Mercanti/Pool photographer Cosby hearing

Not once did the prosecution or Cosby’s defense ask why Castor didn’t get this agreement in writing on Tuesday. Fortunately after about six hours of testimony, Judge O’Neil brought it up and asked him the obvious question. Castor paused long enough to finish a hoagie. After about five seconds of silence, he explained it was unnecessary because he “concluded there was no way the case would get any better” for prosecution. He also said he didn’t want to spoil the civil case by having to explain Constand wasn’t a credible witness.   

That answer followed an afternoon of acrimony. The clarity and cordiality he expressed to the defense team disappeared with the prosecution. Castor recoiled often when questioned by them assistant district attorney Stewart Ryan, not wanting to agree with much of anything.

For example, it took a couple of minutes for Castor to find common ground on what constituted a newspaper article versus an “internet article.” He also said numerous times he couldn’t recall making certain statements to the media and even an entire press conference in 2005 and assumed quotes attributed to him could have been fabricated. As Castor made very clear about a month ago, he doesn’t have much patience for reporters:

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The peak of Castor’s reluctance to agree came when he said he couldn’t remember being on CNN in 2014. Fortunately, the prosecution had video of his appearance. There he was, on a morning show, saying he thought Cosby had lied to him — exactly what Castor said he couldn’t recall saying in an earlier article.

Similar contradictions were apparent in an email Castor had sent Risa Vetri Ferman, most recently the MontCo D.A. and under Castor an assistant D.A. He had testified to the defense that he asked Ferman to tell Constand’s lawyers about the decision of immunity in 2005. But in the emails the prosecution displayed from her to Castor last September Ferman claimed to have no idea of such a decision.

Confusion might’ve been exactly what the prosecution was going for. Under the questioning of the defense, Castor’s image came off as an award-winning lawyer who clearly made a decision and briefed his assistant district attorney on it. By the end of the prosecution’s cross-examination, the image had changed to that of an attorney who couldn’t remember many things he said and talked about hidden messages in press releases.

More witnesses are supposed to take the stand today, and it’s likely Ferman will be one of them. Castor is done. After being excused, he snuck out of the courtroom before speaking to the media.

In a last line to Cosby lawyer Brian McMonagle, Castor said, “Let me be clear Mr. McMonagle. I’m not on your team here. I want them to win.”

So there it was on the record. Castor wants to see Cosby go to trial.

It’s just that nothing else he said on Tuesday or did back in 2005 make it seem that way.

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