The CNN headlines were dramatic:
COSBY CRIMINAL CASE FALLING APART?
CNN EXCLUSIVE: EMAIL MAY DERAIL CASE AGAINST BILL COSBY
CNN is essentially accepting the Cosby legal team’s contention that an unusual email from Bruce Castor, a former prosecutor who declined to prosecute Cosby for the sexual assault of Amanda Constand in 2005, dooms the prosecution against him.
The reality is a lot more complicated. If anything, the email suggests highly unorthodox, if not unethical, conduct by Castor.
The newly elected prosecutor, Kevin Steele, charged Cosby last month. Steele defeated Castor — who was running to regain his position — last November in a contentious election where the prosecution of Cosby became an issue.
The controversy stems from a separate civil case that Constand filed against Cosby that was eventually settled. In the deposition, conducted by Castor in 2005, Cosby admitted to using Quaaludes to facilitate sex with a woman on at least one occasion.
On September 23, Castor wrote an email to his successor, now-outgoing prosecutor Risa Vetri Ferman, claiming that he made a verbal agreement never to use Cosby’s civil deposition in a criminal case against him.
Steele has already cited the deposition in the charges he filled against Cosby.
But there are a number of issues with the email and CNN’s breathless reporting.
Cosby did not have a written immunity agreement
If it was the intention of the prosecutor to provide Cosby with immunity to facilitate his testimony in a civil case, there is a formal process to do that via written agreement. There was no such written agreement.
“I’ve just never heard of a verbal side deal like what this guy is describing. Any defense lawyer who would enter into a verbal agreement like this without getting it in writing and signed by the District Attorney would have to have rocks in his head,” L. George Perry, a former federal prosecutor in Philadelphia, told the Philadelphia Inquirer.
“There is a specific legal method to grant immunity. That was not done in 2005,” Steele told CNN.
The former prosecutors email contradicts his public statements
Castor’s email also suggests that his verbal agreement went beyond the specific deposition and bound the state never to prosecute Cosby.
“With the agreement of the defense lawyer and Andrea’s lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self incrimination thus forcing him to sit for a deposition under oath,” Castor wrote.
This appears to contradict his public comments when he announced his decision not to prosecute. In 2005, Castor said that he would “reconsider this decision should the need arise.”
Although Castor claims he made the agreement in consultation with Constand’s lawyer, her lawyer says that is not true. “He (Castor) said … that he talked to us about it. That’s a lie,” Dolores Troiani, who represents Constand said.
The charges against Cosby do not rely on his civil deposition
Even if there was a binding agreement to suppress the Cosby’s civil deposition, it is not essential to Steele’s charges against Cosby. The bulk of the facts that Steele relies on to justify his charges are based on statements that Cosby, Constand, and other witnesses made to police investigators.
This includes Cosby admitting that he gave Constand drugs — he claims it was “over-the-counter Benadryl” — that from personal use he knew would “make him drowsy and go to sleep right away.” He then, according to what he told investigators, proceeded to have sexual contact with Constand when he knew she would not be fully conscious.
“He knew the victim could become sedated, and likely rendered incapable of resistance, by her ingestion of wine and Benadryl, or wine and another substance, known only to Cosby, with similar effects,” Steele alleges in the recently filed complaint.
Cosby also admitted going to great lengths to conceal the nature of the pills from Comstand and her mother.
The importance of Cosby’s deposition involves his use of Quaaludes to facilitate sex with at least one other woman. It is unclear whether this testimony — evidence of a prior “bad act” — would even be admissible in court. It is certainly not a central component to Steele’s case.
The release of the email raises questions about Castor’s role and ethics
The email that generated CNN’s coverage was a private email from Castor to another prosecutor. So how did it get released to the media? Whether Castor released it directly or shared it with Cosby’s attorneys — who are using it as the basis for a motion to dismiss the charges — it raises serious questions about his role in the proceedings.
Castor’s email also seems to contain threats if the prosecutor decided to proceed with charges. “[U]nless 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,” Castor wrote.
At the time of his initial proceeding Castor encouraged the alleged victim, Constand to remain quiet, saying “[m]uch exists in this investigation that could be used (by others) to portray persons on both sides of the issue in a less than flattering light.”
Castor posted his 2005 press release on his Facebook page, which has recently been deleted.