Bill Cosby mugshot

Montgomery County Judge Steven O’Neill would have to call former District Attorney Bruce Castor a liar. That’s essentially what it would take for him to allow a prosecution of Bill Cosby based on the comedian’s own depositions in civil court.

It’s a bit more nuanced than that, but local defense attorneys who have closely followed the case against one of Philadelphia’s most famous men disagree as to whether or not a verbal agreement between the former DA and Cosby’s attorney more than a decade ago would hold up in court.

“Every DA is different,” said Jeffrey Lindy, a Philadelphia defense attorney and former prosecutor. “I’ve never heard of oral immunity. What I have heard of is a nod and a wink.”

Next Tuesday, lawyers on both sides of the sexual assault case against Cosby will gather in a Montgomery County courtroom to hash out the details of whether or not depositions from a civil case against Cosby that took place in 2005 should be allowed into evidence.

The depositions, in which Cosby admits to giving women pills before having sex with them, were recorded in a case filed by Andrea Constand, a former Temple women’s basketball coach, who says she was sexually assaulted by Cosby in January 2004. After a lawsuit filed by the Associated Press, the depositions were unsealed last year and made public — serving as the basis for charging Cosby with aggravated indecent assault just before the 12-year statute of limitations was up.

The first issue: Using the civil depositions

CNN obtained an email sent by former Montgomery County District Attorney Bruce Castor to then-DA Risa Vetri Ferman last fall that indicated he made a verbal agreement with Cosby and his lawyer at the time, Walter M. Phillips Jr., that the state wouldn’t use depositions against him in criminal court. Apparently the agreement was made to convince Cosby to testify in the civil case brought by Constad, so the comedian couldn’t plead self-incrimination and avoid speaking.

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

There appears to be no written record of such an agreement, meaning its validity could lay squarely on the shoulders of Castor, who could testify next Tuesday.

On one side of the room will be Cosby, now represented by a team of lawyers that includes well-respected Philly defense attorney Brian McMonagle (one attorney said he’s “the lawyer other defense lawyers would call.”) On the other side will be newly-elected District Attorney Kevin Steele, who ran a contentious campaign against Castor promising to re-open the Cosby case that Castor declined to prosecute a decade earlier.

Now that the Los Angeles DA has declined to prosecute Cosby in a allegations brought against him, and many of his other dozens of public accusers are out of the statute of limitations, the case in Montgomery County could be the only criminal charge against he former comedian despite a year of high-profile allegations of sexual assault.

Defense attorney William J. Brennan, who represented Rev. James J. Brennan (unrelated) in the Philadelphia archdiocese sexual abuse case, said an oral agreement is “as binding as if it was in writing.”

“It’s my belief that although deposition records were sealed, the district attorney’s office always had the power to subpoena those deposition transcripts as far back as 2005 or 2006,” Brennan said. “Frankly, if they simply made a request to the civil attorneys, they probably could have gotten them.”

What’s different about this case is that the validity of that agreement will probably come down to testimony by Castor. Meaning that if the judge were to allow the depositions, he’d have to essentially rule that Castor — a well-known figure in Montgomery County — is lying on the stand about the agreement.

Richard J. Fuschino Jr., a defense attorney in Philadelphia, said prosecutors and defense attorneys make agreements based on a nod and a handshake every day.

“The potential problem with it is … (the judge) is in a spot where he will have to make a credibility determination,” he said. “It would be awkward for O’Neill to say ‘I don’t believe Bruce Castor.’”

O’Neill was sworn in as a judge in Montgomery County back in 2002, and the Republican is — like many judges — entrenched in the local political scene of the county he serves. Defense attorneys say that though awkward, he could find a way to allow the depositions into evidence without saying he truly doesn’t believe Castor that the agreement took place. He could simply rule that without a written record of the agreement, he can’t allow it into evidence to suppress the depositions.

The big question is: Why didn’t anyone — Castor or Cosby’s defense attorney who has since died — at least record that such an agreement took place?

“On the one hand, it makes very little sense for him not to reduce this to writing,” Fuschino said. “On the flip side, Castor might not want it memorialized because of politics. He may not want something that could be thrown in his face like, ‘you let somebody go on a rape charge.’”

Lindy said it’s possible Castor didn’t want a record of the deal and Phillips, who was “very old fashioned,” agreed to the oral deal because it might have been the best he was going to get.

The next issue: Bringing in other alleged victims

If the prosecution of Cosby makes it past the issue of whether or not the depositions can serve as the basis for prosecution, the next problem on the plate of his defense team is ensuring that the judge doesn’t allow what’s known as the “404B” rule or “past bad acts.”

In criminal cases, prosecutors typically aren’t allowed to bring up prior allegations of uncharged misconduct. But there are exceptions: If that misconduct might show motive, intent or any sort of pattern of behavior that would set up a defendant’s “signature crime.”

It’s probable that prosecutors in the case against Cosby would want to call as witnesses the dozens of other women who have come forward saying that Cosby sexually assaulted them to show a pattern of behavior. From the defense perspective, that could completely make or break the case against Cosby.

“It’s fundamentally unfair to have to fight shadows,” Brennan said. “The defendant has a right to confront his accuser. To have to fight shadows of alleged uncharged misconduct is a distraction.”

The “past bad acts” issue was central to the case against Monsignor William Lynn, who was convicted in 2012 on charges stemming from his handling of sexual abuse allegations against priests. During trial, the judge allowed 21 other accusers to testify about the Catholic Church’s handling of sexual abuse complaints dating back to 1948. The Superior Court has since ordered a new trial for Lynn, saying the judge shouldn’t have allowed the testimony in the case against him as many of the accusations had nothing to do with Lynn personally.

It’s a bit different with Cosby. Other accusers have alleged that Cosby showed a pattern of sexual assault similar to how Constand says she was assaulted by the comedian. Lindy said many judges “will split the baby” and allow in only some of the most recent allegations that are most similar to the case at hand that would show “a common plan or scheme.”

“It’s very likely a judge would allow that in,” Fuschino said. “But keeping it out is about the most important thing [the defense] could do.”

Anna Orso was a reporter/curator at Billy Penn from 2014 to 2017.