Claim of ‘non-prosecution’ agreement focus of Bill Cosby hearing

Bill Cosby arrives for arraignment in District Court in Cheltenham Township Wednesday, Dec. 30, 2015.

NORRISTOWN >> Entertainer Bill Cosby’s claim he has a 2005 “non-prosecution” agreement that prohibits prosecutors from charging him with sexual assault is the only issue a judge will consider at a pretrial hearing next month.

Montgomery County Administrative Judge Steven T. O’Neill, in a one-page order issued Friday, said a hearing on Feb. 2 “shall be limited to the issues regarding a non-prosecution agreement.”

“The parties shall present evidence and legal argument thereon,” O’Neill wrote.

With the order, the judge rejected District Attorney Kevin R. Steele’s request to move forward with Cosby’s preliminary hearing on Feb. 2 and to delay the hearing on Cosby’s claim he was granted immunity by former District Attorney Bruce L. Castor Jr. and entered into a non-prosecution agreement in 2005.

In addition to the preliminary hearing being delayed, another request by Cosby’s defense team, a motion to disqualify Steele from the case, also will be argued at a later date, according to the judge’s order.

In a motion to dismiss charges against Cosby, defense lawyer Brian J. McMonagle claims Steele violated a 2005 “binding non-prosecution agreement” made by Castor that Cosby would never be prosecuted for allegations of sexual assault made in 2004 by former Temple University athletic department employee Andrea Constand.

Cosby’s lawyers contend the 2005 agreement was made for the express purpose of inducing Cosby to testify in Constand’s civil litigation against him, removing from him the ability to claim his Fifth Amendment protection against self-incrimination, “thus forcing him to sit for a deposition under oath in a civil case” in 2006.

Castor has claimed there wasn’t enough “reliable and admissible” evidence to criminally charge Cosby in 2005.

Defense lawyers claim Steele “repudiated the agreement” and based the criminal charges lodged against Cosby last month on testimony Cosby gave during the deposition connected to the 2005 civil suit.

Prosecutors reopened the investigation last July after Cosby’s deposition connected to the 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.

Steele responded there is no such agreement in writing and that only a judge can grant immunity, which was never done in connection with the Cosby investigation.

Court papers filed by Steele indicate Castor, on Sept. 23, 2015, sent an email to then District Attorney Risa Vetri Ferman stating he had entered into a binding agreement with Cosby not use any deposition testimony from the civil case against him in a criminal prosecution. Attached to the email was a press release Castor issued on Feb. 17, 2005, announcing his decision not to arrest Cosby.

“The press release, however, never mentions the Fifth Amendment or immunity, and does not contain a promise that defendant would never be arrested,” Steele wrote in court papers, claiming the press release cautioned all parties that the decision not to prosecute in 2005 could be reconsidered.

While Cosby’s 2005 lawyer, Walter M. Phillips Jr., who defense lawyers implied negotiated the non-prosecution agreement, is now deceased, Cosby and Castor could testify about its existence, defense lawyers hinted in court papers.

That could set the stage for a courtroom showdown between onetime political rivals Steele and Castor.

Cosby was charged Dec. 30 with three felony counts of aggravated indecent assault in connection with the alleged sexual assault of Constand at his home in the 8200 block of New Second Street in Cheltenham between mid-January and mid-February 2004. The charges were lodged before the 12-year statute of limitations to file charges expired.

If convicted of the charges at trial, William Henry Cosby Jr., as his name appears on charging documents, faces a possible maximum sentence of 15 to 30 years in prison. He remains free on 10 percent of $1 million bail, pending trial.

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.

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