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Judge Steven O’Neil has heard the equivalent of closing arguments from the prosecution and defense, and still expects to decide today whether the criminal sexual assault charges against Bill Cosby will stand.
The question is how quickly that ruling will come. After the Cosby defense team called its last witness — a longtime lawyer for Cosby — the defense motioned for O’Neil to rule in its favor rather than call any of its witnesses. Then, O’Neil had both sides give arguments before granting a break for lunch. O’Neil did not give any indication as to how we would rule or when he would do so. He said the prosecution would still be allowed to call witnesses if he didn’t rule in their favor based upon what he has listened to so far in the trial.
Cosby’s legal team contends Cosby cannot be prosecuted because of a 2005 promise, via a signed press release, that gave him immunity so he couldn’t use his Fifth Amendment right of not incriminating himself in a civil suit brought on by Andrea Constand.
In his argument to O’Neil, Montgomery County district attorney Kevin Steele stressed that former Montgomery County D.A. Bruce Castor did not have the authority to grant immunity to Cosby from prosecution of the alleged 2005 sexual assault of Constand. Further, Steele contends that even in the document that exists (that press release), Castor left open the possibility of reopening the case, through the phrase “reconsider this decision.”
“There is no legal authority allowing a district attorney to unilaterally confer transactional immunity on a defendant,” Steele said. “And I know they’re going to have opportunity to argue this but we have found no authority to corroborate this “sovereign edict theory.”
Castor had testified he was acting as a “sovereign” of the Commonwealth and that therefore his promise to not prosecute was binding.
“It was a secret agreement that permits a wealthy defendant to buy his way out of a criminal case,” Steele said.
Cosby’s team pointed out multiple federal and Pennsylvania cases in which a district attorney was ruled to have the ability to grant immunity and to be considered a “sovereign” that would make a decision binding.
O’Neil questioned whether the evidence from Cosby’s deposition was the entire basis of the new charges, saying he had read the affidavit of probable cause 10 times and thought earlier statements from Cosby and Constand were much of the basis.
“There seem to be agreements of something happened and questions whether (it was) consensual,” O’Neil said to Cosby’s defense. “They are relying on those statements from 2005 from both of them to bring a prosecution.”
Court will resume at 1:45 p.m.