Bill Cosby Could Dodge Sexual Assault Charges on a Weird Technicality

The lone sexual assault case against disgraced comedian Bill Cosby might not even make it to trial.

At a hearing Tuesday morning, lawyers for the 78-year-old entertainer grilled the former prosecutor who declined to charge Cosby back in 2005. That's when Andrea Constand, a Canadian who was working for the basketball program at Temple University in Philadelphia, first accused Cosby of drugging and assaulting her at his suburban home in 2004. Former Montgomery County District Attorney Bruce L. Castor Jr. told a judge Tuesday that he effectively gave Cosby immunity from criminal charges back then in order to compel him to testify in a civil suit instead.

"I decided that we would not prosecute Mr. Cosby and that would set a chain of events that would get some justice for Andrea Constand," the former district attorney said, suggesting that getting her money was "the best he could do." The civil suit was settled in 2006.

The problem is that there doesn't seem to be any written record of any deal—which Castor has denied was a formal one—and the lawyer who represented Cosby at the time is now dead. For his part, Kevin Steel, the new Montgomery County prosecutor who replaced Castor after unseating him last fall, says he won't throw out the case—even if evidence of a deal emerges. The whole situation is kind of a mess, and depending on what Judge Steven T. O'Neill decides, Castor's recollection of the alleged agreement could get Cosby off from the only criminal rape case against him on a mere technicality.

What makes the whole thing even stickier is that it was the very same civil suit testimony Cosby gave that inspired the new criminal case a decade later. According to an affidavit, Constand said she was at the sitcom star's house in 2004 when he offered her three blue pills and some wine. Constand added that she remembered being led to a couch and fondled, and when she came to at about 04:00, Cosby allegedly led her to the door and said, "Alright."

According to Castor, when Constand first filed a police report, there wasn't enough evidence to charge Cosby. He added on the stand Tuesday that Constand was not behaving like a sexual assault victim when she reported the alleged crime, because she went to a lawyer before going to police. "I came to the conclusion that there was no way that the case could ever improve and get better with time absent Mr. Cosby's confession," Castor told the court Tuesday. "Andrea Constand's own actions during that year ruined her credibility as a viable witness."

For what it's worth, Castor added that he thinks the alleged victim was, in fact, touched inappropriately by Cosby, but didn't believe he could prove it.

Of course, when the deposition in the 2005-06 civil suit was unsealed last summer, key parts of Constand's allegations were corroborated. For instance, Cosby openly admitted to giving Quaaludes to women he wanted to have sex with, and the unsealing had an apparent domino effect, with dozens of women subsequently coming forward to say they had similar experiences where they allegedly got drugged and assaulted by the former sitcom star.

The public was so outraged by the revelations that the prosecution of Cosby quickly became politicized, adding a final wrinkle to the whole affair: Steel, the current prosecutor going after Cosby, promised to reopen the case if voters gave him Castor's job.

Cosby is charged with aggravated indecent assault, and faces up to ten years behind bars if the case goes to trial. The pre-trial hearing is expected to continue Wednesday.

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