Cosby's lawyers says subsequent Montgomery County prosecutors are bound to Castor's alleged promise not to prosecute Cosby in 2005
Credit: Ed Hille/The Philadelphia Inquirer

Did former Montgomery County District Attorney Bruce L. Castor, Jr. have the legal authority to promise entertainer Bill Cosby he would never be prosecuted for allegedly drugging and sexually assaulting Andrea Constand?

That is the issue at the heart of Cosby’s motion to dismiss the criminal charges against him, which has been taking place Tuesday and Wednesday in a Norristown, Pennsylvania, courtroom.

His attorneys have argued that Castor did indeed have that power – and that Castor’s decision not to prosecute Cosby is binding upon his successors in the office.

“A promise is a promise,” attorney Chris Tayback told Montgomery County Judge Steve O’Neill in closing arguments Wednesday. “The current district attorney is trying to get out from underneath that promise.”

But newly-elected Montgomery County District Attorney Kevin Steele, who will present witnesses starting Wednesday afternoon, disagreed.

“There’s no legal authority allowing a district attorney unilaterally to offer … immunity to a defendant,” Steele said.

Castor testified for nearly seven hours on Tuesday, where he repeatedly referred to himself as a “sovereign” who had the power to give immunity to whomever he wanted to, without the approval of a judge.

In his closing argument, Steele said, “We have found no authority to support this ‘sovereign edict’ theory that was presented by the witness yesterday.”

Former Prosecutor Who Declined to Prosecute Cosby Says He Nonetheless Believed Accuser

Constand, 42, is the former director of operations for the Temple University women’s basketball team who went to authorities in January 2005 with allegations that, in January 2004, Cosby gave her pills at his house that knocked her out before sexually assaulting her.

Castor, the Montgomery County district attorney at the time, did not file criminal charges, but after Constand sued Cosby, she and the comedian agreed to a civil settlement in late 2006.

Cosby has denied this allegation, saying the sexual contact was consensual. He has denied similar allegations similar allegations from more than 50 other women.

Cosby, wearing a suit and tie on Wednesday as he did Tuesday, but this time using a wooden cane to walk, was subdued in court.

Castor said he decided not to prosecute Cosby because of the many problems with the case: Constand’s delay in reporting; the lack of forensic evidence; her alleged contact with civil attorneys before going to police; her phone contact with Cosby (and possibly one face-to-face meeting) after the alleged incident but before she went to police and discrepancies in her accounts to police.

However, though he never met or spoke with Constand himself, he said on Tuesday he thought Constand was telling the truth.

“I believed Ms. Constand’s account,” he said. “What I think and what is provable in a courtroom are two different things. What I think is that Andrea Constand was inappropriately touched by Mr. Cosby.

“I’m analyzing back in 2005 what I can prove,” Castor said. “All of those combined together in my mind created a situation where she had ruined her own credibility and would not be believed by a juror. That does not mean she was not telling the truth.”

Last month, Cosby’s attorneys filed a motion to have the charges against him dismissed.

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In the motion, Cosby’s attorneys argue that the Dec. 30 charges in Pennsylvania against Cosby “violate an express agreement” between Cosby and authorities, in which authorities agreed Cosby “would never be prosecuted with respect to the allegations of sexual assault made by complainant Andrea Constand.”

Steele, who recently assumed office, filed a response saying such an immunity deal would have to be authorized by a judge, which it was not.