Bill Cosby To Move To Suppress Critical Deposition and Dismiss Charges In Light of Prior Prosecutorial Assurances

ht_bill_cosby_booking_photo_float_jc_151230_16x9_608I 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.

40 thoughts on “Bill Cosby To Move To Suppress Critical Deposition and Dismiss Charges In Light of Prior Prosecutorial Assurances”

  1. The Montgomery County District Attorney from Pennsylvania at the time was Bruce Castor, not Bill Castor. And there’s an interesting story behind Castor’s failure to prosecute Cosby that hasn’t been widely publicized. The mansion that Cosby bought in Montgomery County, PA that Cosby subsequently used to commit his alleged criminal act against Andrea Constand was sold by Bruce Castor’s FATHER on behalf of the original owner at a steep discount to market price. DA Bruce Castor never disclosed that fact to Constrand’s attorney even though it could represent a conflict of interest. Moreover, Castor never even looked into the evidence and merely dismissed Constrand as a credible witness without any basis for doing so and in contradiction to proper legal procedure.

    Here’s a blog reference about this little covered part of the Cosby story. And ignore commentator Beldar’s snide remarks about former attorney Joseph Lawless (who authored Prosecutorial Misconduct, one of the leading legal texts on the subject). History has proven Lawless to be correct and Beldar to be wrong.

  2. Re: Paul Schulte

    Maybe plea deals are appropriate 10% of the time instead 90% of the time. Also it shouldn’t be prosecutors essentially playing poker with a weak hand. Plea deals have essentially eliminated most jury trials.

    For the example: In Texas, prosecutors threatened a single mother of four children with decades in prison or a guilty plea to a felony without jail time. The innocent mother was coerced into pleading guilty if she wanted to raise her four children. In those types of circumstances it seems the bigger crime is abuse of the plea deal system. This case was made into a movie “American Violet”.

  3. PCS, that’s like saying Hillary Clinton should not be indicted for demonstrable violations related to mishandling classified material, which a high ranking general officer in the U.S. Army, Gen. Petraeus, was recently convicted of, because she has a close association, including many multiple “agreements,” with Barrack Obama.

    In a case so compelling, considering the irrefutable and overwhelming evidence of the direct testimony of 50 drugged and raped female victims, dismissing these charges or not allowing all evidence in will constitute gross and egregious criminal corruption, not good “decision” making. This court and the entire judicial branch will be a national joke – as if the SCOTUS isn’t already. It will be the farcical O.J. Simpson “clown show” all over again.

    Something more akin to the 3-month trial, arrest to execution, of the Lincoln assassination conspirators would be apropos.

    America can know the truth. The judicial branch can protect the guilty and nullify the Constitution.

    And life goes on.

    That’s kinda like saying we don’t know what a “natural born citizen” is and that we don’t know that the

    definition of “natural born citizen” is in the Law of Nations.

    The inmates have taken over the asylum.

    1. John – it appears that the women took the drugs freely of their own volition. It is not like he sneaked them a roofie. They thought it would enhance the experience. I have no idea if it does, but they wanted it.

  4. Joseph Jones

    Well, you dragged me across continents. I am flattered. My thoughts on the judicial system is that it must be seen as an alive and work in progress entity as well as a sacred stone carved set of rights given to humans from whomever from where ever. I like the idea of lawyers being employed by a jurisdiction and forced to serve as both defense and prosecution on a regular basis. I like the idea of the local jurisdiction being monitored by the federal. I like the idea of accountability in that when a judge, prosecutor, any other such privileged type is found guilty of anything, the result should be twice the time in jail and/or fine. The most important element of the judicial system, including the police, is the image. Whomever tarnishes the image should pay with their job and worse. If the laws are to be seen as sacred then those involved with them must be held accountable to that same sacred level. I don’t want to go so far as to get biblical or Islamic but today it is mostly a sick joke.

    What else do you want to know Joseph Jones?

  5. Whatever happens we should preserve the integrity of the American Justice System, Independent Judiciary and constitutional “rule of law” – which impacts thousands of cases – not this one case. Every district court case affects many more court cases.

    The appellate courts, state supreme courts and the U.S. Supreme Court DIRECTLY can affect thousands of future cases for several decades for other defendants (most with non-celebrity circumstances).

    The Judicial Branch of government operates fundamentally differently from the rest of American government. It’s essentially a hierarchical top-down command. The higher court’s rulings outweighs lower court rulings – what the higher courts rule is the law of that region, state or law of the nation.

    It seems to me the correct response to preserve the integrity of the justice system would be to penalize the original state prosecutor that denied an honest investigation to the first alleged crime victim – essentially obstructing justice.

    Maybe a constitutional amendment Americans might consider is allowing “pro se plaintiffs” a process to pursue criminal investigations without a government prosecutor. In criminal case plaintiffs are totally dependent on government prosecutors and a corrupt prosecutor can easily derail justice if they have conflicts of interest. In that scenario the crime victim (plaintiff) has little legal recourse outside of a civil case.

    1. RB – Prosecutors cut deals all the time. Do you want them to stop that?

  6. I wonder what Isaac thinks about “technicalities” (e.g. racism, lying prosecutors desiring conviction points for public approval for future elections, non-funding of public-paid defense lawyers for the poor) that directly caused innocents to be put to death.

    If the DA gets away with this, no more future immunity agreements.

    I’m not glad anyone including Bill Cosby get away with criminal rape, a crime perpetrated by someone not me, on an intimate family member. But Bill would never have provided his testimony lacking such agreement. I would not only toss the case, but prosecute the DA.

    Let this be a warning to women and men both: persons who have amassed very large sums of money (mammon) are generally evil and decrepit persons lacking moral fiber. Yes, I know this is a generalization, but it’s a free country and I’m entitled to this generalization. Persons need to think twice about being alone with a very wealthy/powerful person with whom they have no proven history disclosing this person’s true character. Remember the murder trial of the “Wall of Sound” record producer? How dumb must you be to be alone at 03:00 hours with a weirdo complete stranger in a house as big as a country club? Earth to idiot: multi millionaires generally get what they want, whether or not anyone agrees with their decision.

    I’m reminded of reporter Brian Williams’ fall from grace. After his network fired him, public opinion of his honesty and reliability dropped from very high to some abysmal range. Who then owned the top spot of the most honest and reliable American? Someone Americans have never met and with whom they have absolutely no personal knowledge, Tom Hanks. Not only have Americans never met this guy, but he has amassed an estimated $100M as a professional who convinces viewers he is not the person they watch on a screen.

    As a group, Americans really are dumb as rocks.

  7. What I find heartbreaking is that he allegedly got away with it so many times. Over and over again, these women were allegedly assaulted, but none of them burned rubber to the police station when physical evidence was still attainable.

    Yes, many of the women accepted pills from Cosby, which was a dangerous decision most parents warn their kids about. No one deserves to be raped.

    It seems like in today’s age parents need to warn their children about a whole new list of pitfalls. Guys, if you see a passed out girl being raped at a party, you do not take video and post it on the Internet. You protect the girl and call the cops. Girls, don’t take drugs. If you are assaulted, go straight to the police and trust your family/friend support system.

    So disappointed and disgusted with Cosby.

  8. Nick writes, “Tin, I think the deposition will be allowed as evidence and Cosby will be suing his attorney for malpractice.”

    I’d bet a malpractice claim is stale at this point because the cause of action accrued at the time of the deposition over ten years ago. Legal malpractice has a very short statute of limitations, thanks to the lawyer lobby. 🙂

  9. What Tin wrote.

    Re constructive immunity, Cosby could have asserted his right to remain silent at his deposition, although at least in California it would have prevented his testimony on that issue at the civil trial.

  10. *Ken,*

    *Based on what evidence is available in this case and the testimony of numerous women, a poor black man or a poor white man would have been jailed long ago, proving that there are two tiers of justice in this country, one for the rich and well connected and one for the poor. I never cared for Cosby’s arrogance and talking down to young blacks who revered him as a model. He felt he was above the law. — Jack *

    On Mon, Jan 18, 2016 at 12:29 AM, JONATHAN TURLEY wrote:

    > jonathanturley posted: “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 C” >

  11. Evidence is evidence. There needs to be a review of all this legal mumbo jumbo that allows those deserving to be behind bars, go free on ‘technicalities’.

  12. Tin, I think the deposition will be allowed as evidence and Cosby will be suing his attorney for malpractice.

  13. I don’t understand why Cosby’s civil attorneys didn’t seek a formal immunity agreement from the prosecutor, instead of relying on an email. Possible exposure to criminal charges is so critical that they should have retained a criminal defense attorney to handle that aspect and draft an immunity agreement. Even so, it is possible that a state court judge in PA will rule the deposition inadmissible in a criminal proceeding in that state. It remains to be seen whether it can be admitted in other jurisdictions. I really don’t understand why his civil attorneys agreed to a deposition in the first place. I have no sympathy for the creep, but his attorneys did a poor job of protecting his interests.

  14. I know the SC does not understand email, but if you got an email like that you would think your client was in the clear.

  15. He looks so decrepit and old–I know, I know, completely irrelevant with regard to the charges against him–just a personal observation from someone who remembers him in his prime. Nothing more. Mr. Jello just looks so frail and helpless, and I couldn’t help but notice that he appears to be blind in his right eye. It’s so sad to see a venerated and admired American icon, with a career that spans decades and a reputation for being a real trailblazer in Hollywood, especially for black the black community, accused of so many instances of rape and assault. Whatever the truth, I hope that it finally comes out. Very disheartening.

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