Judge Steven O’Neil has ruled the charges against Bill Cosby can proceed, striking down the attempt of Cosby’s defense to get the case thrown out based on an alleged guarantee of immunity from a previous district attorney.
‘There is no basis to grant that relief requested,’ O’Neil said in his ruling, adding that the motion to dismiss the charges is ‘dismissed.’
A preliminary hearing has been set for March 8.
Yesterday, Bruce Castor, the former Montgomery County district attorney, testified to making a decision that Cosby could never be prosecuted for the 2005 sexual assault of former Temple University employee Andrea Constand as a “sovereign” of Pennsylvania, binding the decision forever. He said he did it so Cosby would not be able to use his Fifth Amendment rights, which would allow him to dodge questions during a deposition in any civil suit with Constand.
Castor said he made clear this decision to Cosby’s lawyer at the time, Walter M. Phillips Jr., and used language in a press release, which he signed, to further make the declaration clear. He also said Risa Vetri Ferman, an assistant district attorney at the time, had informed Constand’s lawyers.
Constand lawyers Dolores Troiani and Bebe Kivitz testified today for the prosecution, and they refuted Castor’s claims. They said they were never told of any promise or deal made by Castor. Troiani said the press release damaged Constand rather than give a hidden meaning of his supposed declaration.
“He slammed her, slammed her in that press release,” Troiani said. “She’s a victim in a sexual assault. I was the first woman to try a rape case in Chester County. I was asked if you could use a different word other than penis and had attorneys asking if (the victim) had an orgasm…. Thirty years later we had a district attorney in 2005 slamming a victim.”
Cosby was deposed over four days for the Constand civil suit. Though his lawyer John Schmitt testified that Cosby wouldn’t have spoken to the extent he did if not for Castor’s declaration of immunity, Troiani said Cosby didn’t act like someone free from the threat of prosecution.
“It was an extremely contentious deposition,” she said. “We had to file motions. A lot of yelling and screaming and trying to divert our attention. He became more and more contentious as the deposition went on and he was ordered to answer the questions.”
The civil case was settled in 2006. As part of the terms, Cosby’s defense team originally wanted a clause prohibiting Constand from initiating any future criminal charges against Cosby.
“Why do you need that in the settlement agreement if you had the promise from the ‘sovereign edict?’”current Montgomery County District Attorney Kevin Steele asked. “Because they didn’t have it.”
Cosby’s defense team gave several examples in which a prosecutor did have capability as a “sovereign” to offer immunity. The defense pointed to Castor’s six hours of testimony explaining his decision as proof that he meant for it to be binding forever.
“The easy answer for Castor was ‘I left it open,’” said one of Cosby’s lawyers, Christopher Tayback to O’Neil. “He testified to the hard thing, which is, ‘I gave him a pass.’”
Tayback added, during the defense’s closing statement, “(Cosby’s) not looking for special treatment. He’s looking to be treated the exact same way as anyone else would in this case” — and anyone else — “would not be subjected to prosecution.”
After deciding that the charges would stand, O’Neil issued a separate ruling that Steele can continue prosecuting the case. The defense has sought his removal, citing a conflict of interest. Steele ran television ads promising to re-open the case as he sought election in November, and the defense contested he couldn’t impartially represent the state.
The legal teams for Cosby and for the prosecution declined to address the media afterwards.
Cosby, dressed in a dark brown suit, listened intently throughout the hearing, mostly just breaking his concentration to insert eye drops. He left the courthouse with the assistance of a bodyguard. About 15 to 20 people, mostly teenagers, waited outside and shouted things like “Free Bill.”
Cosby acknowledged them with a wave. One step closer to the start of a criminal trial, he still had plenty of supporters.