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NORRISTOWN, Pa. — Whether or not prosecutors can use a 2005 civil deposition against Bill Cosby during a criminal trial comes down to two questions: Is former Montgomery County District Attorney Bruce Castor credible, and did Cosby trust him?
The comedian and actor was in Montgomery County court today, and his attorneys are attempting to throw out a decade-old deposition Cosby gave in which he admitted to giving women drugs and then having sex with them. The civil suit was filed by Andrea Constand — the woman at the center of the criminal charges against Cosby — after authorities declined to press charges.
Cosby faces charges of aggravated indecent assault in connection with a 2004 incident involving Constand, a former Temple University employee, who told authorities Cosby drugged and sexually assaulted her at his home in Cheltenham, Pa.
The comedian’s defense team claims Castor promised Cosby he would not be criminally prosecuted if he agreed to testify in Constand’s civil suit and not plead the fifth. Castor testified during a February hearing that such a promise was made.
Problem is: Constand’s lawyers say they weren’t aware of any such agreement. And Cosby’s team says that verbal promise was made to Walter M. Phillips Jr., Cosby’s former attorney, who has since died.
“We are now in the quandary of a lifetime because the best witness on this particular issue is dead,” Cosby’s lead attorney Brian McMonagle said. “And he’s dead because [prosecutors] waited 12 years to bring this prosecution.”
In February, Cosby’s attorneys asked for charges against the comedian to be dropped, as the deposition served as the basis for criminal charges and they argued the use of the deposition violated an immunity agreement reached with Castor.
Judge Steven T. O’Neill, who also presided over today’s proceedings, ruled against the defense and they were unsuccessful in their attempts to appeal. At the time, Cosby’s side claimed Castor made an official agreement with Cosby. Now, they say it was simply a “promise,” but that the deposition should not be allowed into trial evidence. They said a 2005 press release about the decision to not charge Cosby is evidence Castor made a promise to the comedian not to prosecute.
Today, O’Neill and McMonagle sparred over the classification of any such “promise” made by Castor. O’Neill pressed McMonagle for any evidence that Cosby’s attorneys verified that such a promise was made in 2005 before Cosby was deposed, and McMonagle didn’t present any evidence to that effect.
Kevin Steele, the current Montgomery County district attorney, says an immunity agreement was never made official and the deposition is relevant to prove sexual assault allegations against Cosby. M. Stewart Ryan, the assistant district attorney who argued for prosecutors today, said there are “credibility” issues with Castor, who they say gave three different versions of any sort of promise made to Cosby.
Stewart argued that even if that promise did exist, Cosby didn’t rely on it when he was deposed and didn’t invoke his fifth amendment right. The comedian gave a statement to police, too, and didn’t plead the fifth in other civil cases against him.
McMonagle still contended the promise was made and any ruling otherwise is essentially accusing Castor of perjuring himself.
“This case,” McMonagle said, “unfortunately involves a situation where somebody else gave their word… and Mr. Steele doesn’t like that promise.”
Cosby entered the courtroom about 15 minutes before his hearing was scheduled to begin. The 79-year-old, whose attorneys say is almost completely blind, was wearing a clean black suit, walked with a cane and was assisted by two handlers. Also in the courtroom was famed attorney Gloria Allred, who’s representing 10 of the 13 women who could testify against Cosby at trial.
The case out of Montgomery County is the only criminal case against Cosby, though 60 women have come forward saying the comedian sexually assaulted them. In most cases, the statute of limitations had run out or prosecutors didn’t feel there was enough evidence to move forward.
About a year after the alleged assault at issue, Constand told authorities that Cosby gave her drugs that rendered her unable to resist his advances. She described the feeling as “paralyzed” and “frozen,” and that she was surprised how the drugs made her feel as Cosby had described them to her as herbal remedies meant to relax her.
Cosby admitted to giving Constand “one-and-a-half Benadryl” and his attorneys have said the encounter was consensual as Constand never said “no.”
Additional arguments about whether or not prosecutors should be allowed to call 13 accusers to testify during trial will be made either at a scheduled hearing tomorrow or at a hearing set for mid-December.
The comedian’s trial has been scheduled for June.