'What other choice did I have?': How a 2005 immunity deal led to Bill Cosby's release

·Reporter
·5 min read

Bill Cosby walked out of prison on Wednesday, appearing triumphant after serving an incomplete prison term for a sexual assault conviction that had just been vacated by Pennsylvania’s highest court.

A jury had found Cosby guilty in 2018 of drugging and sexually assaulting Andrea Constand at his home in suburban Philadelphia in 2004. Multiple other women have accused Cosby of drugging and assaulting them over the last few decades, charges he denied.

Appearing with him in front of reporters and supporters, spokesman Andrew Wyatt declared that Cosby had been “vindicated” and tried to refute the accusations against the 83-year-old comedian, saying he always “used his celebrity to uplift women.” Cosby wrote on his Twitter page: “I have never changed my stance nor my story. I have always maintained my innocence.”

But although the Wednesday decision from the Pennsylvania Supreme Court bars any future attempts to prosecute Cosby for the crime, it does not exonerate him. The decision largely rests on a questionable deal he was given more than 10 years ago that granted him immunity from being criminally prosecuted — and a 2015 decision to forsake that agreement, which the high court said deprived Cosby of due process.

Bill Cosby
Bill Cosby outside his home in Elkins Park, Pa., on Wednesday. (Matt Rourke/AP)

The deal was arranged by then-Montgomery County District Attorney Bruce Castor, who had investigated Constand’s accusations in 2005 and determined there was not enough evidence to launch a successful criminal prosecution. With that in mind, Castor decided to remove the threat of criminal prosecution for Cosby so he would not be able to invoke his Fifth Amendment right against self-incrimination if he were to testify in a civil lawsuit, according to the court’s decision.

When Constand sued Cosby that same year, the comedian and his attorneys relied on this agreement — which was more of an assurance, as it had not been formalized or written — when Cosby sat for depositions. During the depositions, adhering to the court’s decision, he did not assert his Fifth Amendment right and confessed he had provided Quaaludes to women with whom he wanted to have sexual intercourse in the past. Constand eventually settled the suit in 2006 for more than $3 million.

Castor, who was most recently known as an attorney for former President Donald Trump during his second impeachment trial this year, told Yahoo News on Thursday that providing a pathway for Constand to pursue a civil suit was his best option.

“What other choice did I have?” he asked. “There wasn’t enough evidence to arrest him. And the deposition evidence didn't exist. So what were my choices? I could do nothing. And then nothing would happen. Or I could try to get half a loaf, and set the board up so that there would be an incentive to settle the case.”

Andrea Constand
Cosby accuser Andrea Constand in 2018. (David Maialetti/Philadelphia Inquirer via AP, File)

The agreement faced renewed criticism after the court’s decision on Wednesday, but Philadelphia attorney Damian Jackson, a former prosecutor who followed Cosby’s case closely, told Yahoo News that he believes it was a sound decision.

“We have to realize that the climate for these types of cases in 2005 was much different than it is now, and even back in 2015 when they charged him, they were still very hard cases to prosecute,” Jackson said on Thursday. “When we look at it through the lens of 2021, it’s a very different case, because now we understand more about these types of crimes. [There’s] more sensitivity towards these types of crimes. So although it's not a popular decision, I think it was a good decision.”

Castor said it never occurred to him at the time that his successor would try to reverse his decision. But that’s exactly what happened in 2015, when Montgomery County District Attorney Risa Ferman, who is now a county judge, reopened the criminal investigation into Cosby after the details of his 2005 civil settlement with Constand were unsealed.

Castor told Yahoo News that he tried to caution Ferman against pursuing the case. “I sent a private memorandum to the district attorney’s office reminding them what had happened 10 years before, and saying that it was a bad idea to move ahead,” Castor said. “I thought that that would be enough.”

But given that there was no written agreement provided to Ferman, she, along with her predecessor Kevin Steele, forged ahead, using evidence from the deposition. That culminated in Cosby's conviction in April 2018.

Bruce Castor Jr.
Bruce Castor in February, at the conclusion of the second impeachment trial of former President Donald Trump. (Alex Edelman/AFP via Getty Images)

When Cosby’s attorneys sought the dismissal of the charges against him during the case, the trial court found that because there was no authorized immunity deal, it did not apply. Cosby’s post-conviction appeals also failed, and he was even denied parole in May, Reuters reported.

While the Pennsylvania Supreme Court didn’t dispute the trial court’s conclusion that Castor’s deal was not a binding agreement and was more of a “quid pro quo exchange,” it disagreed with the notion that Cosby and his counsel should not have relied on this assurance or somehow should have known better than to trust it. On the contrary, the court found that Cosby’s reliance on this deal was “reasonable, and it resulted in the deprivation of a fundamental constitutional right when he was compelled to [furnish] self-incriminating testimony.”

Bill Cosby
Cosby leaving the Montgomery County Courthouse in Norristown, Pa., on April 26, 2018, after his conviction. (Matt Slocum/AP)

The district attorney’s decision to prosecute Cosby violated his Fifth and 14th Amendment rights to due process, the court’s opinion said.

Jackson noted that the court’s decision is about upholding the Constitution, not proclaiming Cosby’s innocence. Castor expressed a similar view.

“There’s no way you can think that Cosby won,” Castor said. “He spent almost three years in prison, and [had] his reputation ruined and had the anxiety of two trials. So it wasn’t a win for him, it was a win for people who, like me, believe in the rule of law.”

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