• Nathaniel Whitesel

Bill Cosby and the Secret (But Not-Binding) Agreement


Bill Cosby and his legal team probably are not very happy right now. It is certainly no secret that the once-cherished comedian has fallen spectacularly from grace. With dozens of accusers, the public has rapidly polarized on the question of Cosby’s culpability. Tensions reached their highest point when Cosby was indicted on December 30, 2015 in Montgomery, Pennsylvania on charges of indecent assault stemming from allegations first recorded in 2004.

Cosby’s counsel moved to dismiss all of the sexual assault charges early last month, arguing that the charges violated a 2005 agreement with the Montgomery County Prosecutor’s Office. Indeed, the jurisdiction’s former prosecutor, Bruce Castor, suddenly ended his office’s criminal investigation in February of 2005. But recent revelations show that the former District Attorney made a verbal agreement with Cosby in 2005 to drop the case in exchange for testimony in the accompanying civil case against the comedian. On February 3, after two days of “testimony and bickering,” Judge O’Neill of the Montgomery County Courthouse ruled that the case could continue, ruling there was “no basis to grant the relief request.” As a result, the criminal case against Cosby survived its first, of likely many, major hurdles.

Cosby’s team must be understandably in shock. During argument on the motion to dismiss, Cosby’s attorney asserted that “a promise of a prosecutor, even an oral promise, is absolutely 100 percent enforceable.” Cosby’s legal team established that they “certainly wouldn’t have let [Cosby] sit for a deposition” if the criminal charges were still pending in 2005. Former District Attorney Castor, in an email to the current prosecutor, Kevin Steele, even emphasized that he could “see no possibility that Cosby’s deposition” – which has been identified as the key piece of evidence in this case – “could be used in a state criminal case.”

But the judge denied the motion and permitted the case to go forward. Why then are the current staff of the Montgomery County District Attorney’s office permitted to attempt to finish the job left unresolved eleven years ago? The former District Attorney expressed that though he though his agreement was binding, he wanted the case to be allowed to go forward. It may be that the court in question was “understandably reluctant” to throw out such a high-profile criminal case in light of the current public frenzy over Cosby. In addition, the current District Attorney issued a statement on January 20, 2016 that claimed the defense’s claim of immunity was discounted by the press release in 2005 “that clearly states the decision not to prosecute in 2005 may be reconsidered” and that “only a judge may issue a grant of immunity.” Steele argued in court that Castor had “no authority to unilaterally grant immunity…[such an agreement] had to be in writing and approved by a judge.” The crux of his point was that:

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right”

Pennsylvania law seems quiet on the exact issue seen here, and it is remains unclear if this decision makes Castor’s decision to drop the 2005 prosecution more dependent on his lack of confidence in his ability to prove the facts of the case eleven years ago.

Regardless, now that the state court has permitted the case to continue in spite of this challenge, it seems obvious that Cosby’s 2005 legal team should have attempted to get something more definitive on the record, in the even that a new District Attorney came along and decided to pursue the case. Cosby’s lawyers have promised to appeal the decision should the case continue to roll away from Cosby’s favor.

Considering that Cosby had yet to have a preliminary hearing or arraignment in this case, his advocates leave little doubt that the District Attorney faces an uphill battle in the months to come. Many questions remain, including some over the reliability of the victim’s account, especially after a settled civil suit and eleven years past. These questions and the apparent rivalry between the major attorneys in this case present a long battle that may prove interesting for any practitioner that goes beyond the public spectacle of Cosby’s fall from grace.


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