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The prosecutor undone by a ‘secret agreement’ with Bill Cosby

A Pa. judge refused to dismiss a sexual assault case against Bill Cosby on Feb. 3, setting the stage for the first criminal prosecution against him. (Video: Reuters)

They were two men on different sides of an alleged crime — or so it seemed. And when Montgomery County, Pa., District Attorney Bruce Castor declined to prosecute comedian Bill Cosby in 2005 for allegedly sexually assaulting Andrea Constand at his Pennsylvania mansion, life for both went on as before. Castor, a rising Republican politician known for his candor, would continue to serve as prosecutor until 2008, when he became county commissioner. Cosby, America’s Dad, went on being Cosby — endower of universities, scolder of the black community, living legend.

Now, winter has come. Cosby, his reputation in tatters after more than 50 women accused him of molesting them, has been charged in the decade-old case after a judge dismissed arguments that he had an immunity agreement.

And Castor, who allegedly offered Cosby what current prosecutors called a “secret agreement,” has been shredded on the witness stand before the world — after losing an election in which his failure to prosecute Cosby became a major issue.

Sexual assault case against Bill Cosby is cleared to proceed

The trouble began in 2005, when Castor issued a news release announcing that he would not charge Cosby in the Constand case. He found that “insufficient, credible and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt,” the statement said. Nowhere was an immunity agreement mentioned. In closing, the statement encouraged both sides to resolve the issue with “a minimum of rhetoric.”

Yet with 11 years of hindsight and on the stand for seven hours at Cosby’s pretrial hearing Wednesday, Castor offered what the Los Angeles Times called an “involved legal theory”: that he “deliberately shut down the possibility of a criminal trial — with the so-called agreement — because he wanted to deprive Cosby of any 5th Amendment protection should Constand bring a civil lawsuit,” as the paper explained.

“I thought making Mr. Cosby pay money was the best I was going to be able to set the stage for,” Castor said, as NBC reported. He added, “I was hopeful that I had made Ms. Constand a millionaire.”

Prosecutors — again, the current prosecutors — pounced on their predecessor.

“Please, tell me in the press release where you made [an agreement] absolute,” Assistant District Attorney M. Stewart Ryan said.

“I will if you quiet down and let me look at it,” Castor replied.

Cosby’s attorneys contended that, although the agreement might not have been written down, it was still valid.

“A promise of a prosecutor, even an oral promise, is one that is absolute, 100 percent enforceable,” Cosby attorney Christopher Tayback said, as The Washington Post’s Karen Heller reported.

But why hadn’t an immunity agreement been filed with the court? Castor said Cosby was worried about how that would look.

“It was unnecessary because I concluded there was no way the case would get any better,” Castor added. Referring to Cosby’s graphic testimony about his alleged assault of Constand, in a civil suit — “the act of the penile entrance is something that I feel the woman will succumb to more of a romance and more of a feeling, not love, but it’s deeper than a playful situation,” among other comments — Castor said: “Cosby would’ve had to have been nuts to say those things if there was any chance he could’ve been prosecuted.”

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right,” argued District Attorney Kevin Steele.

These words stung not just because the judge eventually sided with Steele, a Democrat. They stung because Steele, three months ago, had trounced Castor in Castor’s attempt to return to the district attorney’s office — and made the Cosby non-prosecution a huge issue in the campaign.

One memorable Steele ad surfaced in October. It touted his “98 percent conviction rate” and “tough sentences for sexual predators.” Of course, it said voters always had another option: “Bruce Castor, a former DA who refused to prosecute Bill Cosby.”

“Castor said, ‘We don’t charge people for making a mistake or doing something foolish,'” a grim voice intoned. “Many more victims came forward and Castor admitted he could have used their testimony against Cosby.” The upshot: “Bruce Castor was not looking out for the victims.”

This had to be answered, and Castor fired back days later.

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“By now, you’ve heard my opponent’s ad saying I did nothing to protect the other victims of Bill Cosby,” Castor said. “These women’s identities became available only after I left the DA’s office and lost the power to enforce the law. But Kevin Steele could have done something because he is still a prosecutor who chose to do nothing at all. Now he’s trying to blame me for his mistakes and incompetence.”

The ad concluded: “Despicable, desperation politics. Disgusting lies. Kevin Steele had the power to help victims of Cosby, but he sat on his hands.”

Days after that, a debate was scheduled. Alas, Castor had to back out, citing “family medical issues.” Steele, however, showed up. First, he said he understood why Castor couldn’t make it.

“God, country and family come first, and I hope everything is okay with that,” Steele said.

Then, he tore into his absent opponent, addressing an empty chair.

“Not appropriate, not doing justice in a case,” Steele said of Castor’s behavior. “It’s not what a prosecutor should be involved with.” He also dismissed Castor’s claim that he helped alleged victim Constand “get a paycheck.”

“You made a choice to take it forward, to fight for victims, to fight for people who have been the subject of crimes,” Steele told supporters after his victory. “And that is where I will continue to make a difference every day. … We’re going to take a great office, and we’re going to make it greater.” His office charged Cosby the next month.

Castor blamed his party for his loss.

“I always liked being a lawyer far more than I liked being a politician, and I still do,” he said as he contemplated a return to private practice. “I don’t rule it out. I just don’t see Pennsylvania ever recovering from the damage that the Republican Party has done to itself. We saw statewide judicial races; the Democrats won all of them.”

But he soon had more to say about Cosby.

“At the time I remember thinking that he probably did do something inappropriate,” he said. “But thinking that and being able to prove it are two different things. … I didn’t say that he didn’t commit the crime.”

After all, he said, it would have served his own interests to bring one of America’s foremost entertainers to justice.

“As much as I wanted to go forward, there wasn’t enough evidence, and prosecutors are bound by the law,” he said. “I mean, I’m not a fool. I recognize that had I arrested Bill Cosby it would’ve been front page news at every newspaper in the world and led every broadcast in the world. In my position, that’s something that might be of value to me.”

But for Castor, now a private citizen, the chance to act against Cosby was long past.