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February 02, 2016

Case against Bill Cosby has 'credibility problem,' former D.A. said

NORRISTOWN – Tuesday's hearing in the Bill Cosby case ended with the judge sharply questioning why former District Attorney Bruce Castor’s agreement not to criminally prosecute the Philly native “for all time” for sex crimes stemming from an alleged incident in Montgomery County was never put in writing.

Castor testified during the hearing, put on the stand by Cosby's defense lawyers. The hearing, which will continue Wednesday, will determine the validity of a promise made by Castor not to prosecute Cosby on allegations that the TV star drugged and sexually assaulted Andrea Constand at the comedian's Cheltenham home in 2004.

Cosby's lawyers seek to have charges in the lone criminal case against the comedian thrown out because of Castor’s representation to Cosby’s then-lawyer, who has since died, that there would never be a criminal case brought against the entertainer.

Common Pleas Court Judge Steven T. O’Neill closed the daylong hearing, which reconvenes Wednesday at 9:30 a.m., with a series of questions to Castor.

The judge seemed perplexed about why, since there was no civil case filed at the time Castor made his decision, he took it upon himself to take away Cosby’s Fifth Amendment right not to incriminate himself in a civil case.

Castor's decision set the table for Cosby settling Constand's 2005 civil suit related to the alleged sexual assault at Cosby's home. The former DA repeatedly said it was a decision on his part, not an “agreement” as it was characterized in media accounts. 

Castor spoke frankly about his opinion of the sexual assault allegations, stating that while he believed Constand’s account, there was “insufficient admissible evidence” in the case to prove Cosby’s guilt beyond a reasonable doubt. 

The former district attorney was critical of Constand, for delaying in alerting authorities about the alleged assault.

Constand has sued Castor for defamation, claiming he undermined her credibility and misstated facts about her case in social media postings.

“I did not think the case would ever get better,” Castor said during the hearing, referencing Constand’s delay in reporting the alleged crime and inconsistencies in her statements. Her behavior “had created a credibility problem” that could never be overcome, Castor said.

“I did not believe it was just for the criminal prosecution to go forward,” Castor said. He explained the decision not to prosecute the TV star in exchange for a settlement payout in the civil case “would gain some measure of justice for Andrea Constand.”

“Mr. Cosby would have handcuffs on,” had he been able to prove the allegations made in the civil case, Castor testified.

“I was hopeful I had made Ms. Constand a millionaire,” he added, when he later learned that the case had settled. Cosby did not react.

Before the start of the hearing, Cosby arrived at the Montgomery County Courthouse and entered the courtroom through a side door, aided by burly escorts who led him to the defense table for the hearing, where he was seated promptly at 9 a.m.

Outside the courthouse, a phalanx of broadcast journalists had recorded Cosby’s arrival and news helicopters hovered in place overhead.

Minutes after his arrival, Montgomery County District Attorney Kevin Steele, and additional lawyers arrived, filling the prosecution table and the space behind.

Cosby pivoted in his seat and listened as instructions to the media were reminded of the court’s orders regarding decorum. As many as 30 journalists and 50 members of the public – many of them courthouse employees – sat in the rear of the courtroom, intent on taking in what The Associated Press has called "perhaps the biggest Hollywood celebrity trial of the mobile-news era."

After Common Pleas Court Judge Steven T. O’Neill met with lawyers for about 10 minutes in a pre-hearing meeting, O'Neill took his seat on the bench at about 9:43 a.m. Immediately, Steele presented a last-minute motion challenging the hearing, saying it was premature.

Cosby defense attorney Brian J. McMonagle countered, “The time to do that is now.”

The judge agreed, denying Steele’s request to halt the hearing, saying “I’m ready to hear the evidence” of whether or not Cosby has a valid non-prosecution agreement with former Montgomery County District Attorney Bruce Castor regarding the investigation into the alleged sexual assault of Andrea Constand by the Philadelphia-native entertainer.

O'Neill also told the courtroom that removal of the Montgomery County District Attorney’s office as the prosecutor of the case – which is sought by Cosby’s legal team – was discussed. But that issue would not be decided Tuesday, the judge said.

Castor lost to Steele in the November election for Montgomery County district attorney. Castor was the county's top prosecutor from 2000-2008.

And on Tuesday, he was the Cosby defense team's first witness. Attorney Brian McMonagle began with Castor’s background, awards, honors and experience – and finally the allegations by Constand against Cosby.

Constand first reported the alleged sexual assault to authorities in Canada, “where she lived,” Castor testified. The case was first referred to Philadelphia, based on the location, but then redirected to Montgomery County when it became clear the alleged incident took place at Cosby's Cheltenham home.

Castor said there was “no prompt complaint,” and there was a delay of about a year.

As a former sex crime prosecutor, he said that time “was of enormous significance” from a legal standpoint. A timely complaint is especially important when there is no supporting forensic evidence, Castor said. He noted Constand’s hair could have been tested to determine if she had been given drugs as is alleged in police reports.

Castor testified he assigned his “best people” to investigate the allegations against Cosby because he wanted to show Canadian authorities that he took investigating a celebrity seriously.

Castor then was handed a copy of the original report of Constand’s complaint to Canadian authorities. Assistant District Attorney Stu Ryan, who raised objections frequently during the hearing, objected again, warning that citing the police report could lead to arguing the facts of Constand’s account, which was not the intent of the hearing. O’Neill agreed.

Castor's testimony proceeded. He was asked about the local Cheltenham police and the county detectives conducting the investigation, at which point Castor suggested that his answer be heard in chambers, adding “I’ve done this for a long time.”

The curveball comment caused a flurry.

Then the judge agreed to hear Castor’s recollections in his chambers. Castor returned to the courtroom in about 10 minutes, the lawyers and the judge perhaps five minutes later and the hearing resumed.

The judge called Castor’s request “highly unusual,” but since no question was asked pertaining to the investigations that the hearing would resume.

Castor said there were “a number of inconsistencies” in Constand's responses “that would affect her credibility at trial.” The judge cut off McMonagle when he began to question specifics of those inconsistencies.

Cosby was also interviewed, Castor said, and his homes in Cheltenham and New York were searched. Cosby's criminal lawyer at the time was Walter M. Phillips, who died last year.

Castor testified Phillips had told him that Constand and Cosby had multiple contacts in person and over the phone, and the lawyer also told Castor he believed there had been “non-law enforcement” wiretaps.

Castor also said Constand and her mother were trying to convince Cosby to pay money to her.

Two wiretaps over the phone, apparently at the behest of Constand’s mother, could have contained “incriminating evidence,” but the recordings would not be allowed under Pennsylvania law and potentially could have resulted in felony charges.

Castor said other women contacted his office to make similar complaints. But he said the cases were “decades old” and had “never been reported to police.”

He said those complaints would not have been admissible.

Castor also answered questions about a 2005 press release issued by his office regarding his decision not to prosecute Cosby. He said he’d taken pains to word the release so it would not not undermine Costand's credibility, nor prejudice potential jurors in a pending civil case, Castor testified.

Cosby sat passively as Castor said he’d included information in the press release about similar complaints of wrongdoing against Cosby made by other women.

Castor said his wording was meant as a warning to both sides to stop trying the allegations in the media and settle the issue in civil court.