Bill Cosby has arrived at a Pennsylvania courthouse where his lawyers will ask a judge to dismiss the felony sexual assault case against him. (Feb. 2) AP
Bill Cosby arrived at a courthouse in Norristown, Pa., Tuesday for his first hearing on criminal sexual-assault charges that he hopes to persuade a judge to dismiss. But his first key witness may have created problems for him.
Former District Attorney Bruce Castor, called to testify about why he did not pursue criminal charges against Cosby years ago, seemed to pin the problem on Cosby's accuser in the case, ex-Temple University employee Andrea Constand.
Castor said there was “insufficient, credible and admissible evidence” to show Cosby had committed a crime without a reasonable doubt. Plus, he told the court, Constand had a "credibility issue" and didn't behave like a victim of sexual assault.
“The behavior detailed within (police interviews) was inconsistent with a person who had been sexually assaulted," Castor testified. "Her actions, on her own, including going to a lawyer before going to police, had created a credibility issue for her that could never be improved upon.”
Therefore, he said, he declined to prosecute Cosby in 2005. He said this decision made it impossible for Cosby to use his Fifth Amendment right not to testify in the civil case Constand later brought against Cosby. Castor said he thought getting Constand money from Cosby via a civil suit would be “the best he could do.”
The hearing was scheduled to break for lunch at 12:30 pm.
Earlier, Cosby, dressed in a tan suit and tie and flanked by two men helping him to walk, arrived to the anticipated media mob outside the tiny courthouse, the only place most of the media can photograph him during the hearing before Montgomery County Judge Steven O'Neill.
No cameras are allowed in the courtroom; no smartphones can be turned on for tweeting.
Cosby got out of an SUV, with police officers standing nearby and cameras watching, and put on his jacket, then walked into the building. Inside, a pool camera captured him walking towards the courtroom holding a cane in his right hand, his security-assistants grasping him at the elbows.
The scene outside the courthouse resembled in many respects the scene on Dec. 30, when Cosby was charged and arraigned in an even smaller courthouse, in Elkins Park, Pa., on charges of felony indecent sexual assault stemming from an encounter 12 years ago at his nearby home with Constand, who accused him a year later of drugging and raping her.
In December, Cosby appeared frail and halting, and also had to be helped into the courthouse by one of his lawyers, Monique Pressley. Pressley has said in public and in court papers that Cosby, 78, has vision trouble and is nearly blind.
Comedian Bill Cosby,78, arrives to the Montgomery County courthouse in Norristown, Pa. on February 2 , 2016. Cosby is scheduled to be in the Montgomery County courtroom today for pre-trial hearings in the sexual assault case against him.
The case against Cosby dates back to 2004. Castor, the then-district attorney of Montgomery County, declined to prosecute Cosby in 2005 for lack of evidence. So Constand sued Cosby in civil court, and Cosby testified for three days in a deposition. The suit was eventually settled on undisclosed terms and sealed in 2006.
Since then, some five-dozen women have accused Cosby of drugging and/or sexually assaulting them in episodes dating back to the 1960s.
Last year, excerpts of Cosby's deposition were released and the new district attorney of Montgomery County, Kevin Steele, decided to file charges just weeks before the state statute of limitations was due to expire.
Steele intends to press his case against Cosby based in part on Cosby's own words in the Constand deposition.
Cosby's legal team will argue that the charges should be dismissed because of a a "no-prosecution" deal in 2005, when Castor says he told Cosby's lawyer that if Cosby answered questions in the Constand deposition, Castor would agree not to prosecute Cosby based on the deposition.
Castor was the first witness called at the hearing by one of Cosby's lawyers, Philadelphia attorney Brian McMonagle, to testify about his reasoning in not pursuing criminal charges against Cosby.
Castor didn’t get far before advising the judge that he shouldn’t answer a specific question about what was said by Constand in interviews with detectives. After a break while the parties and the lawyers went behind closed doors, the hearing resumed.
Steele has argued against Cosby's motion to dismiss, saying any immunity deal should have been written down and agreed to by a judge, and since it wasn't, it's irrelevant in this case.
But some legal analysts say that if Cosby can demonstrate that he relied on Castor's promise to his detriment — by agreeing to testify in the deposition — then he might be able to persuade the judge to throw out the deposition — or even dismiss the charges altogether.
If not, Cosby also has sought to dismiss the charges based on other factors, such as the long delay between the alleged crime and the prosecution.
Contributing: Brittany Horn, The News Journal