Will Bill Cosby’s Case Be Dismissed?

A judge in Montgomery County Pennsylvania ruled Wednesday, February 3, 2016 that the sexual assault case against Bill Cosby will go forward. This is after his lawyers spent two days arguing that the case should be barred from going forward, because of a promise made in 2005 by Bruce Castor, the District Attorney. He promised never to prosecute Mr. Cosby. Judge Steven O’Neill ruled, however, that “there was no basis to grant the relief requested” and therefore the case will proceed.

Cosby’s attorneys announced they plan to appeal the decision, but in the meantime, the case of a former Temple University employee named Andrea Constand, who is accusing Mr. Cosby of sexually assaulting her in his home in 2004, will proceed. Bill Cosby, who has yet to enter a plea, has been charged with aggravated indecent assault against Constand.

Ms. Constand went to the authorities after the alleged attack, and the district attorney at the time chose not file sexual assault charges, based on his assessment that there was insufficient admissible and credible evidence. However, Cosby was charged this past December, 11 years after the state of Pennsylvania initially declined to prosecute.

New allegations came up in the Bill Cosby case

Andrea Constand alleges that Bill Cosby drugged her and then sexually assaulted her in 2004 in his Pennsylvania home, after inviting her over with the ruse of discussing her professional future. Ms. Constand, the former director of operations for the women’s basketball team at Temple University, met Mr. Cosby in 2002 when he sought her out to “mentor” her.

In her civil suit, she alleged sexual assault, battery, and the intentional infliction of emotional distress. A confidential settlement agreement was entered into in 2006 between the parties, but before settlement was reached, the judge compelled Mr. Cosby to answer questions under oath. That deposition has been sealed since 2006, until a federal judge unsealed parts of it last summer. Once it was unsealed, the district attorney’s office argued that there was “new evidence” found in the unsealed deposition which was enough to reopen the case and bring criminal charges against Mr. Cosby. The new evidence that led prosecutors to seek criminal charges is the answer to a question asked during his deposition. Ms. Constand’s attorney asked Cosby:

Q. “When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with?”

A. “Yes.”

Although Cosby later clarified in his deposition that he was only referring to one unnamed woman, this testimony, combined with his testimony that he did have consensual sex with Constand on the night in question, is the basis for the criminal charges.

Cosby’s Legal Arguments

Bill Cosby not only denies the allegations being brought against him, but he is arguing that this prosecution is improper, as it is based on testimony he gave in a civil suit that he only gave because the district attorney at the time closed the criminal case and promised not to pursue criminal charges. The argument is that had Mr. Cosby known he might face future charges, he would not have given the answers in the civil suit that he did. The district attorney’s office did in fact reopen the investigation based on so-called “new evidence” which was found when Cosby’s deposition in Ms. Constand’s civil suit was unsealed.

One of the lawyers who was part of Cosby’s legal team in 2005 testified in court this week that District Attorney Castor wrote a news release in 2005 announcing no charges would be brought against Cosby in connection with Constand’s allegations should be treated as a written, irrevocable agreement that Cosby would never be prosecuted in this case. He testified that he would not have allowed Cosby to be deposed in her civil case if he were still subject to criminal prosecution.

Troubling Testimony by the State

The district attorney at the time, Mr. Castor, testified that he is the one who made the decision in 2005 not to prosecute Cosby, partly because he did not believe there was enough evidence to obtain a conviction, and because he thought declining to prosecute might help Constand be successful with her civil lawsuit. By declining to prosecute in 2005, he removed the likelihood of Cosby claiming his Fifth Amendment right against self-incrimination in the civil suit. That is basically an admission that Cosby only testified in the subsequent civil suit because he took potential prosecution off the table, and it is that testimony that is now being used to charge him with sexual assault. The current district attorney, Steele, argues that there has never been a non-prosecution agreement in existence between his office and Mr. Cosby, and has stated in legal pleadings that his office has no such documentation, nor can they find anyone who does.

Violation of the Fifth Amendment or Breach of Contract?

Regardless of whether you think Bill Cosby is innocent or guilty, he has the same constitutional rights as the rest of us, including the constitutional right against self-incrimination. He was verbally induced by the state of Pennsylvania in 2004 to give testimony under oath in a civil lawsuit without asserting his Fifth Amendment right against self-incrimination, with the promise that he would not face prosecution. Although this promise was not written down, the prosecutor at the time basically admits this is the correct interpretation of the events at the time. It does indeed seem like Mr. Cosby’s rights were violated if he was induced to provide testimony with a promise that he would not be prosecuted, and then that very testimony is being used ten years later to seek criminal charges against him for that very crime. At a minimum, it would seem as if there was an oral contract between Cosby and the prosecutor at the time, which was breached 11 years later when these charges were filed.

Has the State of California Broken a Promise to You?

Pennsylvania is not alone in cases where a district attorney makes promises that they do not keep. California law might be interpreted differently than Pennsylvania law in such circumstances. Although not exactly the same, California law on broken plea agreements and prosecutorial misconduct is a very hot area of the law right now, with federal judges recently commenting on an epidemic of prosecutorial misconduct in California courts.  

If this situation against Bill Cosby highlights the importance of something, it is the importance of getting any agreement the prosecutor makes in writing. Orally agreeing to something, even if the prosecutor does not later deny it, may not be legally binding against later prosecutors. If you or a loved one is in a situation where you have been promised something by the prosecutor, and you want to safeguard yourself, or you are facing criminal charges and want to discuss your options, call Alex Ozols, owner of the Ozols Law Firm today for a free consultation. Ozols Law Firm has a proven track record of successfully defending all manner of criminal cases on behalf of San Diegans, and ensuring that the rules are followed by the other side.