Will Bill Cosby Rape Trial Succeed? Part Two of Two

In my previous post on this subject, I wrote of how the only sex crime prosecution to date against Bill Cosby, may be ultimately derailed.

The reason has to do with an agreement that the previous Montgomery County District Attorney, Bruce Castor, made with Cosby’s attorneys, over ten years ago.  Then agreement promised not to prosecute Mr. Cosby for what is essentially the crime of indecent assault & battery in connection with allegations made by a woman named Andrea Constand.  Mr. Castor says that he agreed not to prosecute Mr. Cosby, in order to increase Ms. Constand’s chances of prevailing in a civil suit against Mr. Cosby for damages relating to the alleged incident.

In terms of legal procedure, it would work like this:  If the DA had prosecuted Cosby in 2005, Cosby would have been entitled to claim his 5th Amendment privilege against self-incrimination, and refused to testify.  Thus, without any witnesses but the alleged victim, obtaining a conviction against Cosby would have been a gamble, at best.  And if he were acquitted from the prosecution, that would make Ms. Constand’s chances of obtaining a civil judgment against Cosby also remote.

But if Cosby’s lawyers were promised that Cosby would not be prosecuted criminally for anything he might testify to in the civil case brought by the alleged victim, then Cosby could feel free to acknowledge or admit to the victim’s claims in her civil suit, thus increasing the chances that the victim could at least achieve some measure of civil justice, by receiving a (presumably) large financial settlement from Cosby (which would almost certainly have been predicated upon a full confidentiality clause, protecting Cosby further still from any public relations consequences.)

Cosby’s lawyers agreed to the deal, Cosby testified in Ms. Constand’s civil suit against him for sexual assault, and he reportedly admitted to numerous sexual encounters with various women, including giving them prescription Quaaludes.(Cosby, of course, contended that all the encounters were consensual).   As a result, Constand reportedly received a large financial settlement from that civil suit.

Now, an email has surfaced from that former DA, Bruce Castor, in which Castor informed his successor of this agreement with Cosby’s attorneys back in 2005, not to prosecute the actor.

Okay, fast forward to last month, in December when Cosby was charged. Kevin Steele, a new District Attorney, is about to take office.  The main thrust of Steele’s prosecution is that 2005 civil deposition, which Castor’s email discusses. The question:  Can the prosecution now use that evidence at a trial to prove Cosby’s guilt?  My answer as a Boston sex charges attorney:  Probably not.

The written agreement not to prosecute that the previous District Attorney made with Cosby’s lawyers, will probably be upheld by the present trial judge.

As an experienced Massachusetts sex crimes lawyer, I would say that the trial judge would have to either dismiss the current prosecution outright, or allow the defense’s motion to exclude this evidence, and rule that the prosecution cannot use Cosby’s testimony from the 2005 civil lawsuit, or any information from it, in its case against him.

So if that 2005 deposition can’t be used against Cosby in the present criminal case, will prosecutors have enough other evidence to convict Cosby?  Possibly.

They can still admit Cosby’s interview with police back following Ms.. Constand’s 2005 allegations, wherein it’s reported Cosby admitted to most everything Constand accused him of, except the use of quaaludes.  Prosecutors may also introduce other women’s allegations, as evidence of similar conduct.

Our criminal justice system is often a hard pill to swallow – I know.  But the framers of our Constitution wanted it to be this way, to prevent innocent people – like you and me – from being convicted.  Let’s wait and see what happens here.  Time will tell.