NORRISTOWN >> Entertainer Bill Cosby wants a state court to review the decision of a Montgomery County judge who rejected Cosby’s claim that he had a promise from a former district attorney that he would never be prosecuted for the alleged 2004 sexual assault of a woman at his Cheltenham home.
Cosby’s defense team on Friday filed a direct appeal, under a so-called “exceptional circumstances doctrine,” to the Pennsylvania Superior Court of the Feb. 3 decision by county Judge Steven T. O’Neill, who rejected Cosby’s request to dismiss the aggravated indecent assault charges and a second request to disqualify county District Attorney Kevin R. Steele from prosecuting the case.
It wasn’t clear on Friday if the appeal will delay Cosby’s previously scheduled March 8 preliminary hearing on the charges that were filed in connection with the alleged sexual assault of former Temple University athletic department employee Andrea Constand at his New Second Street home between mid-January and mid-February 2004. The charges were lodged against Cosby, 78, before the 12-year statute of limitations to file charges expired.
O’Neill’s decision last week came after hearing two days of testimony concerning Cosby’s claim that he had a valid non-prosecution promise from former District Attorney Bruce L. Castor Jr.
“Mr. Castor’s agreement and promise not to prosecute Mr. Cosby and the commonwealth’s 12-year delay in bringing charges against Mr. Cosby raise issues separate and independent from the merits of the case against Mr. Cosby,” lead defense lawyer Brian J. McMonagle wrote in the appeal.
McMonagle, who was joined by co-defense lawyers Christopher Tayback and Monique Pressley, argued the issues are far too important to be denied review because they relate to Cosby’s due process rights and they concern “the integrity of the judicial system which demands that the commonwealth live up to its obligation.”
“These issues must be resolved now, because lack of immediate appellate review will cause Mr. Cosby’s interests to be irreparably lost, since he will be prosecuted in breach of the commonwealth’s direct promise and agreement not to do so and in violation of his due process rights,” McMonagle wrote.
While defense lawyers claim permission to appeal is not required from O’Neill, they are asking O’Neill to amend his Feb. 3 order to allow for the direct appeal to the state court, “in the interest of judicial economy” and to avoid battles over judicial jurisdiction. Such a move would expedite the appellate process, the lawyers argued.
It’s unclear if O’Neill had seen the request as of Friday evening.
“We will file a response, but in our review of the law, we find that they do not have a right to direct appeal at this stage,” Steele reacted on Friday. “We continue to oppose any further delay in the case.”
In a carefully worded order last week, O’Neill said he based his decision not to dismiss charges against Cosby on the arguments of lawyers and the testimony of witnesses during the hearing, indicating “a credibility determination” also was “an inherent part” of his decision.
The defense team’s request to dismiss the charges primarily rested on the word of Castor, district attorney from 2000 to 2008, who during seven hours of testimony on Feb. 2, claimed he made a binding promise to Cosby and his then lawyer, Walter Phillips Jr., in 2005 that Cosby would never be prosecuted in connection with Constand’s allegations. Phillips has since died and Castor was the prime defense witness regarding the alleged promise.
Stopping short of calling his decision an “agreement,” Castor claimed he alone as a “sovereign” entity had the authority to make a binding decision. Castor testified, “Mr. Cosby was not getting prosecuted ever, as far as I was concerned.”
Castor testified he made the promise after becoming concerned about evidentiary issues during the 2005 investigation and determining there wasn’t enough “reliable and admissible” evidence to prosecute Cosby at that time.
The decision, Castor said, was made to create an atmosphere that would induce Cosby to testify in Constand’s civil litigation against him and allow Constand to prevail civilly and “make a lot of money.” That decision not to prosecute, Castor implied, removed from Cosby the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath in the civil case over the course of four days between September 2005 and March 2006.
Current prosecutors reopened the investigation last July after Cosby’s deposition connected to the 2005 civil suit was unsealed by a judge. In that deposition, Cosby gave damaging testimony, allegedly admitting he obtained Quaaludes to give to women with whom he wanted to have sex.
But Steele and co-prosecutors Stewart Ryan and Kristen Feden argued there was no valid non-prosecution deal.
In their unsuccessful request for Steele’s disqualification from the Cosby case, defense lawyers contended the newly-elected Steele violated ethical rules by injecting the Cosby case into his fall election bid against Castor. Steele claimed the defense claim had no merit.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.
