January 15, 2016
The developing case against embattled actor Bill Cosby may be in danger of falling apart after a September e-mail sent by former Montgomery County District Attorney Bruce Castor included reference to an agreement that prosecutors would not use a civil deposition given by Cosby in criminal matters connected to the allegations of former Temple University employee Andrea Constand.
The e-mail, obtained by CNN, was sent by Castor to his successor Risa Vetri Ferman three months before Montgomery County prosecutors, led by newly elected DA Kevin Steel, charged Cosby with three felony counts of sexual assault in December. The reopened criminal case stems from Constand's allegation that Cosby sexually assaulted her in his home in 2005.
In the e-mail, Castor tells Vetri Ferman about a verbal agreement he had with Cosby's attorneys that if the comedian testified in the 2005 civil sexual assault case, his deposition would not be used by prosecutors for in any subsequent criminal prosecution. Castor said the spirit of the deal was to give Constand the best chance to prevail in civil court by removing the risk that Cosby, now 78, would invoke his Fifth Amendment right.
CNN published a portion of Castor's e-mail to Vetri Ferman:
I can see no possibility that Cosby's deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression.
I cannot believe any state court judge would allow that deposition into evidence. .... Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.
The disclosure of the agreement could nullify the deposition as viable evidence, potentially dismantling a case that depends heavily on its admissibility in court.
Bill Cosby's attorneys have already dismissed the case as "illegal," citing a pledge from Castor, and called for the disqualification of Steele's office if the case isn't thrown out.
Castor declined provide any comment to CNN about the email, but Steele said the legal method to grant immunity was not completed in 2005. He added that Castor's declaration of insufficient evidence to prosecute Cosby in 2005 included a stated willingness to "reconsider this decision should the need arise."
Steele, who defeated Castor in the recent November election, sparred with his opponent over the original decision not to prosecute Cosby during the campaign race.
A preliminary hearing for Cosby has been set for Feb. 2 at the Montgomery County Courthouse in Norristown.