Just as a judge dismissed the civil case for defamation against Bill Cosby last month, his criminal case may go up in smoke before it barely gets started. Over 50 women alleged Cosby engage in sexual misconduct, assault and/or rapes against them over the course of 40 years. In a civil case for defamation, one of those women, Renita Hill, alleged that Cosby, his wife and attorneys made false statements about her in the media. A Pennsylvania judge found no merit to her case and dismissed it.
And now a hearing scheduled on Cosby’s criminal case began February 2, 2016 before a Montgomery County judge in Pennsylvania on the issue of whether the District Attorney’s office violated an alleged 2005 agreement by the prior District Attorney, Bruce Castor, Jr., to refrain from charging Cosby in Constand’s case in exchange for his testimony in her civil case. In the criminal case, Cosby’s lawyers have a good chance of having the only criminal case filed against Cosby dismissed, if the judge believes Castor.
Prosecutors charged Cosby in December with an aggravated indecent exposure charge involving a 2004 incident with Andrea Constand. Shortly following the 2004 incident, Constand filed a civil law suit which ultimately settled. Her lawyers wanted to depose Cosby in 2005. And an alleged agreement was entered involving the previous Montgomery County Pennsylvania District Attorney that the Cosby deposition and any of his statements contained would not be used against him and further he would not be charged for the incident—as an inducement for him to testify in the civil case. That is crucial because the victim cannot remember all of the details of what happened as she was allegedly drugged.
If the judge finds that there existed an agreement and upholds the prior agreement, the case should be dismissed. A newly elected prosecutor cannot void any previous agreements entered into by his office. The issue will be whether there was an agreement. And if the agreement did exist, it means the charges brought against Cosby were filed without merit and in violation of an agreement.
In a twist of fate, former District Attorney Bruce Castor, Jr. testified on behalf of the defense to support Cosby’s viewpoint. The judge placed on hold a preliminary hearing pending the outcome on the issue. Present prosecutors pursuing charges against Cosby worked for Castor and do not recall the agreement or seeing any written documentation.
Now for the bad news for Mr. Cosby, there has been no smoking gun. There isn’t a written agreement–just the memory of the former District Attorney who happenstance lost his job to the present District Attorney prosecuting Mr. Cosby. And the former civil attorney who represented Cosby in the civil case is deceased. So much hinges on the credibility of Bruce Castor and his recollection of the events. And Castor does not seem to indicate there was ever a written agreement. Lawyers routinely document important agreements in writing–as well as unimportant agreements. And if Mr. Cosby’s presumably high paid lawyers allowed him to testify in a civil case in 2005 without a written agreement and only word of mouth, that’s highly questionable at best.
While an accused bears no burden of proof in a criminal trial, the defense bears the burden of convincing a judge in the motions hearing to dismiss the case. A decision is expected shortly. However, based on the testimony with no written documentation, the criminal case will likely continue to proceed.
Even if Cosby eludes prosecution, he will still be deemed guilty in the court of public prosecution.
Update: This post was updated to reflect the current hearing taking place. Judge O’Neil refuses to dismiss case. Case now moves to preliminary hearing on March 8, 2016.
Washington, DC based Debbie Hines is a trial lawyer, legal and political analyst and former prosecutor. She can be seen frequently in the media on Al Jazeera America, CBS News, C-Span, MSNBC, BET, PBS among others. Her Op Ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American. She is a native of Baltimore.