Schmitt said Cosby later sat for a deposition in Constand’s civil suit over four days and never once invoked his Fifth Amendment right against self-incrimination.
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Before court ended Wednesday, the judge scheduled a preliminary hearing on March 8.
Cosby’s lawyers said they never would have let him testify if they didn’t believe criminal charges were off the table.
The case against 78-year-old Cosby largely hinges on the judge’s view of Castor’s statements about whether Cosby would face charges.
The judge said he hoped to rule Tuesday on the request to dismiss the charges. “While that can’t be the basis for their legal reasoning, they know as a practical matter that what they definitely don’t have in front of them is one woman in a he-said, she-said case”.
Moreover, they argue, Castor did not have the authority to bar his office forever from pursuing criminal charges against Cosby.
Castor has contended Constand’s lawyers wanted the agreement so Cosby would be free to testify in her lawsuit.
The defense says Cosby had a deal with former Montgomery County District Attorney Bruce Castor that he wouldn’t be charged and should therefore testify in his accuser’s 2005 civil lawsuit.
A 2005 press release in which Castor said Cosby would never be prosecuted was read out in court, with defense attorneys contending it represented a non prosecution agreement.
“In this case, the prosecution should be stopped in its tracks”, Cosby lawyer Chris Tayback argued.
The 78-year-old Cosby was charged in late 2015 by prosecutors in Pennsylvania with sexually assaulting Andrea Constand, a Canadian former basketball coach at his alma mater Temple University.
But current Montgomery County District Attorney Kevin Steele attacked the idea that Cosby’s lawyers would allow a deal that was never spelled out in a formal non-prosecution agreement and contended such a deal would not have legal force. Neither Cosby nor Goins was spotted in exterior video footage of the August 9, 2008 event at the mansion; investigators further found evidence that Cosby was in NY that weekend, and his name had not appeared on any guest lists for events held at the mansion that summer.
The claimant, Judy Huth, was only 15 at the time of the alleged sexual assault that occurred at the Playboy Mansion in 1974.
The current district attorney has said he has no record of such an agreement.
Karlan ordered Cosby to attend the half-day deposition and pay the costs of conducting the second round of sworn testimony.
While Castor was called as witness by Cosby’s side, the former DA said he is rooting for the prosecution.
He said he made the decision not to bring charges as a representative of the state – as “the sovereign”, as he put it, over and over – and that it would last in perpetuity. In this courtroom sketch, Bill Cosby, left, looks at Kevin R. Steele, second left, First Assistant District Attorney in the Montgomery County, and prosecutors Kristen Feden, second right, and Stewart Ryan, right, during Cosby’s… Castor said that Cosby’s lawyer – Walter Phillips – told him that Constand and her mother were trying to get money from Cosby in exchange for not going to police.
Some legal analysts say that if Cosby can demonstrate that he relied on Castor’s promise to his detriment – by agreeing to testify in the deposition – then he might be able to persuade the judge to throw out the deposition – or even dismiss the charges altogether.
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Castor said Constand’s delay thwarted his ability to test her hair or fingernails for evidence she was drugged. Cosby had not yet responded to the case.
