By Lizzy McLellan, From The Legal Intelligencer

In a hearing Tuesday over Bill Cosby’s petition to have the felony charge against him dismissed, the former district attorney who declined to charge him in 2005 testified that certain actions by Cosby’s accuser made her lose credibility, and made the case against Cosby seem unprovable.

Former Montgomery County District Attorney Bruce L. Castor Jr., who declined to charge Cosby after his office investigated Andrea Constand’s sexual assault allegations against Cosby in 2005, said he intended for the county to be bound by his announcement that Cosby would not be arrested. He said his office found evidence of non-law-enforcement wiretapping of conversations between Constand and Cosby between the time of the incident and when Constand went to police. The District Attorney’s Office went in search of the evidence after Cosby’s attorney at the time, Walter M. Phillips Jr., suggested the wiretaps took place, Castor said. Phillips died last year.

Cosby filed a petition for writ of habeas corpus last month, arguing that his attorneys in 2005 had an enforceable agreement with the District Attorney’s Office that he would not be prosecuted.

Castor was called as the first witness by Brian J. McMonagle, one of Cosby’s lawyers. After discussing his background and how the case came to the Montgomery County District Attorney’s Office, Castor was asked about his consideration of Constand’s statements to police and investigators. Castor then requested that he be allowed to answer that question in camera, to which Judge Steven T. O’Neill expressed surprise.

Upon his return to the courtroom, Castor answered. He said Constand’s various statements to law enforcement were inconsistent.

McMonagle continued to question Castor about Constand. Castor told McMonagle that he learned Constand had contacted civil attorneys before going to the police in 2005. He noted that because Constand’s allegations surfaced a year after the alleged incident, it would have been impossible to collect ­forensic evidence.

“My choices were to leave the case open and hope it got better, or definitively close the case and allow the civil court to provide redress to Ms. Constand,” Castor said. “Her actions on her own, including going to a lawyer before going to the police, had created a credibility issue for her that could never be improved upon.”

Castor also mentioned that his office received other reports from women who said Cosby molested them, but those were not found to be of evidentiary value.

On the stand, Castor explained that despite his conclusions about Constand’s credibility, he did not want to go into detail about his reasons for deciding not to pursue a prosecution in 2005 because his intent was to “gain justice for Andrea Constand” through the civil litigation.

“I did not want anyone to think that Ms. Constand, her mother … had done anything illegal because again I didn’t want prospective jurors to conclude that Ms. Constand was a bad person and hold it against her,” Castor said. “I didn’t want her to be vilified publicly because … I thought that was unfair to her, but there’s a broader reason and that was that I wanted to encourage people to come forward if they were sexually assaulted or assaulted in any way.”

Castor said he spoke with Phillips before issuing a statement on his decision not to prosecute, and told him that because of the decision, Cosby would not be allowed to assert his Fifth Amendment rights in the civil suit Constand was expected to bring.

However, Castor said, Phillips did not agree to do anything in return for the nonprosecution. He simply agreed with the legal analysis.

“Frankly, neither one of us thought it was that hard of a concept to understand,” Castor said.

McMonagle also questioned Castor in detail about the press release he wrote in 2005. Castor explained the meaning of several items in the press release with separate messages intended for the press and public, the legal community and the litigants.

He said he hinted to phone records and other evidence, like that of the wiretaps, in the press release, in a way that the litigants would understand but the press would not use to draw conclusions. For the litigants, he said, it was to be read as a warning.

“I was saying that everybody better keep your mouth shut because you don’t want things out there, because that could put a monkey wrench into the success or failure of the civil case,” Castor said.

Castor testified that, last year, he contacted then-District Attorney Risa Vetri Ferman to tell her to “tread carefully.” By that time, media were reporting that the Cosby case had been reopened in Montgomery County. Ferman was running for a position as judge of the Montgomery County Court of Common Pleas, which she won.

“I knew that I had bound the commonwealth, as representative of the sovereign, not to arrest Mr. Cosby … and I wanted to make sure that she didn’t make a mistake and go ahead and move against Cosby, and it turn out that she should not have done so and affect her election,” Castor said.

On cross-examination by the District Attorney’s Office, Castor said he recalled a few other times when he said he would not prosecute a case. However, those only occurred in civil cases he had not heard about until he was called in to answer the question of whether he had plans to prosecute.

Assistant district attorney M. Stewart Ryan then showed a number of news stories quoting Castor, making a variety of assertions about the Cosby case. In one, he said he thought the case against Cosby was “weak,” and in another article, he is quoted as saying, “We don’t charge people with making a mistake or doing something foolish.” The prosecution also showed a CNN interview, in which Castor said he thought Cosby was lying in 2005 during an interview with prosecutors.

Later, as Ryan questioned Castor about the 2005 press release, Castor said he explained to reporters “darn near every time” they asked that Cosby was not going to be prosecuted because of the Fifth Amendment implications.

Ryan then asked Castor about his interactions with Ferman at the time of the decision not to prosecute and when the investigation was reopened. Castor said he asked Ferman, then his first assistant, to notify Constand’s lawyers about the decision never to prosecute, and its implications on Cosby’s Fifth Amendment rights. He said he never heard back from Ferman about her discussion with Constand’s lawyers about the decision.

Ryan presented a letter from Ferman to Castor in which she requested of him a purported written declaration of the nonprosecution agreement. Ryan showed Castor’s email reply to Ferman’s request, in which he said the plaintiff’s lawyers approved the “written declaration,” the press release.

Ryan asked Castor how he knew about the plaintiff’s lawyers’ approval, noting that Castor had previously said he did not hear back from Ferman about the discussion with Constand’s lawyers. Castor said he probably heard of the approval from Ferman, but he was only 90 percent sure.

It wasn’t until after both sides had finished questioning that Castor was asked about why he never pursued a written agreement approved by a judge. Castor answered that he felt is was not appropriate at the time, since no civil case had yet been filed. He said it would be a suggestion that Cosby did something wrong, and that he wanted to use transactional immunity, which he said is a function of the district attorney.

The hearing is set to continue and come to a conclusion on Wednesday. O’Neill is then expected to make a decision on Cosby’s petition.

IMAGE: Bill Cosby speaking event with Judge Marvin Arrington at Benjamin E. Mays High School. .Photo by Zachary D. Porter/Daily Report .4/24/08.4/24/08
Zachary D. Porter

For more on this story go to: http://www.thelegalintelligencer.com/id=1202748601688/Castor-Says-2005-Cosby-Decision-Was-Binding#ixzz3z8Qkcmk3