I recently wrote about the criminal case against Bill Cosby for his alleged sexual assault of one of a number of women accusing him of rape or other criminal conduct. Now there appears an added wrinkle: the defense is claiming that a key deposition of Cosby occurred with an understanding that it would not be used in a criminal prosecution. However, there does not appear to be a formal immunity agreement.
The defense are citing an email in which former Montgomery County district attorney Bill Castor promised Mr Cosby’s deposition in a 2005 civil case would not be used to bring criminal charges. It was in that deposition that Cosby admitted to giving pills to women before having sex with them. As discussed in the earlier column, that deposition is the basis for the charges over the alleged assault of Andrea Constant in 2004.
Castor later wrote to his successor, Risa Vetri Ferman, and said
“I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression . . . I cannot believe any state court judge would allow that deposition into evidence. … Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the County and maybe even against you personally.”
The issue will be made all the more difficult by the absence of a formal immunity agreement. Moreover, Andrea Constand’s lawyer said she never knew of such an agreement. That will make for a very interesting suppression hearing on any constructive immunity from the agreement.