Feb. 02--REPORTING FROM NORRISTOWN, Pa. -- In a final push to derail a criminal case against Bill Cosby, defense lawyers called a former Pennsylvania district attorney to the witness stand Tuesday in the first major courtroom proceeding involving the entertainer.
Cosby's attorneys are pushing to have the sexual assault case against him tossed out before it goes to trial.
Cosby, 78, is accused of three counts of aggravated indecent assault, a second-degree felony, for a 2004 encounter he had with Andrea Constand, a former Temple University basketball staffer more than 35 years his junior.
On Tuesday, Cosby attorney Brian McMonagle called Bruce Castor to the stand and sought to establish that the former Montgomery County prosecutor had done all he could to pursue an investigation against Cosby a decade ago but had came up empty.
Though the hearing is ostensibly to determine whether Castor made a binding agreement with Cosby's attorney that would preclude criminal prosecution, the defense pressed forward -- over the repeated objections of prosecutors -- in seeking to more generally establish holes in the case, circa 2005.
"The lack of a prompt complaint and the [consequent] inability to gather forensic evidence from the home or from the person is one piece," Castor said, referring to Constand's follow-up after the alleged assault. "Contacting a civil lawyer before going to the police department" was another, he said.
To prevail in the hearing, though, Cosby's lawyers must demonstrate that there was an agreement between Castor and late Cosby defense attorney Walter Phillips never to prosecute if Cosby testified in a civil trial. McMonagle called attention to a news release Castor wrote a decade ago that stated he considered the criminal manner closed, relying on the fact that the district attorney signed it personally.
Castor told the court that he finally concluded that the criminal case against Cosby was so weak that he decided to give up on that and put his faith in the civil suit.
By closing off the possibility of a criminal case, he said, he believed he would remove Cosby's ability to plead the 5th Amendment in the civil one.
"I did not think there was any possibility the case could get better," he said. "I didn't believe it [made sense] to go forward with a criminal prosecution but I wanted there to be some measure of justice."
Prosecutors are expected to counter that this did not translate to a formal or binding agreement providing Cosby with immunity.
As the proceedings broke for lunch, the biggest fireworks were still to come. Current Montgomery County Dist. Atty. Kevin Steele, who defeated Castor in an election several months ago -- in part after vowing stronger prosecution of Cosby, is expected to cross-examine Castor. The scene will pit two prosecutorial rivals against each other in a debate over who has the best approach to the Cosby case, with the entertainer's judicial fate on the line.
Castor did take the opportunity in the morning to explain why he dropped the case a decade ago: He finally concluded that the criminal case against Cosby was so weak that he decided to give up on that and put his faith in the civil suit.
By closing off the possibility of a criminal case, he said, he believed he would remove Cosby's ability to plead the 5th Amendment in the civil one.
"I did not think there was any possibility the case could get better," he said. "I didn't believe it [made sense] to go forward with a criminal prosecution, but I wanted there to be some measure of justice."
He also offered, at the behest of McMonagle, that he believed his successor, Risa Ferman, concurred with his belief there was no way to build a case, running through the roughly seven years when no charges were filed after he left office.
Cosby appeared lighthearted and relaxed during breaks, talking to members of his team, but serious during the hearing, resting his chin in the crook of his palm or gazing stared intently at Castor as he offered testimony.
At stake is more than just the reputation of a showbiz icon. The Cosby case has become a cultural flashpoint and, according to some, a cautionary tale of privilege and sexism.
After decades as the country's foremost chronicler of family foibles, Cosby has been buffeted over the last 15 months by allegations from women, now numbering more than 50, who say the comedian initiated unwanted sexual contact, often after allegedly plying them with drugs or alcohol.
But the statute of limitations in many of those cases has run out, and activists argue that the Constand case is the best chance at justice. The charges, which Steele brought in December shortly before the statute of limitations would have expired, marks the first time Cosby has been charged with a crime involving these allegations.
The entertainer has denied wrongdoing in all of the alleged incidents and in some cases sued his accusers, saying they defamed him.
The Constand case has brought to the surface some graphic and salacious details.
According to the complaint, Constand struck up what she believed to a be a protege-mentor relationship with Cosby in the early 2000s, and in 2004 visited Cosby's home in Cheltenham, Pa., to talk about her future. But after some diverting conversation, Cosby urged her to drink wine over her objections.
When she described feeling stressed, he also brought out unidentified pills that he characterized to Constand as his "friends" and pressed her to take them. After she did, the filing says, Cosby proceeded to penetrate Constand vaginally with his fingers and engage in other sexual contact that was not consensual.
"The evidence here demonstrates that the victim's substantially impaired condition prevented her ability to consent or even defend herself from Cosby's sexual assault," the complaint said.
Cosby's defense team, led by McMonagle and Monique Pressley, has acknowledged its client had sexual contact with Constand that night but maintains it was consensual.
Though steeped in the vagaries of Castor's behaviors a decade ago, often down to minute details, the hearing has brought out some dry comedy, particularly from judge Steven O'Neill. At one point when the prosecution and defense couldn't agree on whether information had been properly shared, the judge deadpanned to the defense, "Why don't you tell them what they already know that they don't know?"
Legal experts say O'Neill has several options at the hearing, including allowing the case to move forward or dismissing it outright. He also could potentially rule that testimony from the Constand civil suit -- primarily Cosby's admission that he previously obtained Quaaludes to facilitate having sex with women -- could be inadmissible, because of the promise Cosby's attorneys say the former prosecutor made in 2005.
The Quaaludes admission, which came to light when the civil suit records were unsealed last year, are considered integral to Steele's case.
Early Tuesday, representatives dozens of media outlets had descended on the courthouse waiting for Cosby to show up. The streets, lined with low-key restaurants and businesses, were packed with TV news vans, their satellite equipment poking high into the air. Camera operators camped out on a lawn, trading rumors about the celebrity defendant's arrival.
Cosby hopes to avoid a messy public trial that will make the details of his interactions with Constand (the complaint also says that the entertainer offered to pay for the alleged victim's education after the incident) under a media microscope. Cosby has already seen his star dim in Hollywood, with entities such as Netflix and NBC shelving projects with the comedian in 2014, though he did continue to tour well into last year.
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