DA in Bill Cosby case says non-prosecution deal is invalid

Actor and comedian Bill Cosby arrives for a court appearance Wednesday, Feb. 3, 2016, in Norristown, Pa. Cosby was arrested and charged with drugging and sexually assaulting a woman at his home in January 2004. A judge will decide whether to dismiss a sexual assault case against the comedian over an unwritten promise of immunity that a former prosecutor says he gave Cosby's now-deceased lawyer. (Ed Hille/The Philadelphia Inquirer via AP, Pool

NORRISTOWN, Pa. (AP) — The prosecutor in the sexual assault case against Bill Cosby argued Wednesday that his predecessor had no legal authority to make a deal a decade ago that would shield the comedian from ever facing charges.

District Attorney Kevin Steele said that the 2005 supposed no-prosecution deal — which was never put in writing and was only alluded to in a press release — ran afoul of the law and was a misuse of authority.

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right,” Steele said.

Steele made the argument on Day 2 of a bid by Cosby’s lawyers to get the sex-crime charges thrown out. They contend that then-District Attorney Bruce Castor’s 2005 decision not to prosecute bars his successors from filing charges.

“In this case, the prosecution should be stopped in its tracks,” Cosby lawyer Chris Tayback argued. “Really what we’re talking about here is honoring a commitment.”

Judge Steven O’Neill said he hoped to rule later in the day.

Cosby, 78, was arrested and charged in December with drugging and sexually violating former Temple University athletic department employee Andrea Constand at his suburban Philadelphia home in 2004. The former TV star could get up to 10 years in prison if convicted.

Castor found the case too flawed to prosecute in 2005, but Steele’s office reopened the investigation last summer, after the comedian’s damaging, decade-old testimony from Constand’s civil case was unsealed at the request of The Associated Press and after dozens of other women came forward to accuse Cosby of assaulting them.

On Tuesday, Castor testified that as an elected representative of the state, he had the power to give Cosby a lifetime pass from prosecution.

He said he wanted to use the agreement to force Cosby to testify in Constand’s civil case without invoking his Fifth Amendment right against self-incrimination. Cosby ultimately testified, and Constand settled for an undisclosed amount.

Cosby’s lawyers said they never would have let him testify if they didn’t believe criminal charges were off the table.

However, Constand’s lawyer, Dolores Troiani, testified Wednesday that she was never told before or during the lawsuit that Castor had struck a deal taking criminal charges off the table. Troiani said she didn’t learn of the supposed agreement until last September.

“There was no reason for us to request or ask for him to be granted immunity,” she said. “We’re ex-prosecutors, my partner and I. We wanted him arrested.”

The judge said that he struggled to find similar cases where a suspect who was never charged received a promise that he would never be prosecuted. Normally, immunity is granted after a suspect is charged because he or she can provide testimony or information to prosecutors.

Here, Castor said he was clearing the way for Cosby to testify in a lawsuit that, at the time of his decision, hadn’t been filed yet.

“There is one thing we can all agree on,” Tayback said. “There is no case quite like this.”

More than 40 women have accused Cosby of drugging and sexually assaulting them since the 1960s, destroying his good-guy image as America’s Dad. But the statute of limitations for prosecuting him has run out in nearly every instance. This is the only case in which he has been charged.

Castor defended his decision not to bring charges, citing among other things Constand’s yearlong delay in reporting the allegations, her continued contact with Cosby, and suggestions that she and her mother might have tried to extort the TV star.

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