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Photo of Matt M. McClenahen
Photo of Matt M. McClenahen

Why Bill Cosby Prosecution Will Collapse

by | Jan 16, 2016 | Bill Cosby

The Bill Cosby prosecution is on the brink of collapse. This morning, Michael Smerconish of CNN dropped a bombshell, reporting that former Montgomery County DA Bruce Castor had an agreement with Cosby’s attorney Patrick J. O’Connor in 2005 not to prosecute Cosby, should the comedy legend be willing to testify in a deposition in the civil case filed by accuser Andrea Constand. Castor believed that he could not win a criminal conviction against one of the most beloved and respected figures in America, who was even more revered in the Philadelphia area than the rest of the country. Thus, Castor sought to create an avenue for Constand to at least get monetary compensation in a civil case.

Cosby accepted Castor’s offer, and proceeded to make inculpatory statements in a civil deposition. This transcript was sealed, and pursuant to the agreement, Castor never used it to pursue criminal charges. Recently, however, a judge ordered that the transcript be unsealed, and its contents became available to the media. Cosby eventually settled the civil case for an undisclosed sum of money. Given the fact that Cosby was represented by a highly-skilled and experienced attorney, one can only assume that Attorney O’Connor would have permitted his client to testify if and only if there was an ironclad promise not to prosecute.

During last year’s Montgomery County District Attorney election, Castor’s handling of the Cosby case became an election issue, with then First Assistant District Attorney Kevin Steele all but promising to prosecute Cosby should he win the election. Yet in September 2015, Castor sent a detailed email to then Montgomery County District Attorney Risa Ferman explaining the deal he made not to prosecute Cosby. This is a binding agreement, and a new district attorney cannot renege on this deal. Nevertheless, Steele’s office filed criminal charges shortly before the statute of limitations was set to expire.

The very best outcome that the Commonwealth can hope for is that a Common Pleas Court judge will “suppress” Cosby’s deposition testimony, meaning that it cannot be used in the Commonwealth’s case in chief at trial. If, however, Cosby were to take the stand and testify in an inconsistent manner with his deposition, then prosecutors can use the prior inconsistent testimony to impeach Cosby’s credibility. The Commonwealth could still prosecute the case without Cosby’s inculpatory statements, however, obtaining a conviction would not be nearly as easy as it would be with damaging admissions from Cosby that he would give sedatives to women, which when combined with alcohol can render people unconscious, coupled with admissions that he cheated on his wife on numerous occasions.

It is also possible that the judge will quash the criminal informations filed against Cosby, barring further prosecution. This would appear to be the correct decision. The Montgomery County District Attorney made a deal with Cosby in 2005 and Cosby relied upon this deal. Had Attorney O’Connor known that a new DA would not honor the deal, then he certainly never would have allowed his client to incriminate himself in a deposition.

Even if Cosby is not prosecuted and convicted, his reputation has still been destroyed. Numerous women spread out over several generations and over a large geographic area have all come forward with similar stories, even though the statute of limitations has long since expired, preventing them from any civil monetary compensation. Every single one of them was attractive and each described the same modus operandi.

To Gen-X Americans like me, Cosby was a childhood role model, and I am sure more than a few high school students were persuaded to go to Temple due to Cosby’s efforts as a recruiter for his alma mater. Even I briefly considered Temple, but my ties and allegiance to Penn State were just too strong. It’s a shame to see it all end this way for The Cos.

Matt McClenahen is a criminal defense attorney in State College, PA, who grew up watching “Fat Albert” and “The Cosby Show,” just like every other American kid his age.

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