Judge: Ex-DA Castor’s opinion inadmissible at Bill Cosby retrial

NORRISTOWN » Montgomery County prosecutors won their bid to keep the jury that will weigh Bill Cosby’s fate on sexual assault charges from hearing a former district attorney’s explanation for declining to prosecute the actor in 2005.

Just days before Cosby’s sexual assault retrial gets under way, Judge Steven T. O’Neill on Friday said a 2005 press release issued by former District Attorney Bruce L. Castor Jr. cannot be mentioned during the actor’s retrial. The judge also ruled that other law enforcement officers’ alleged opinions about the credibility of the evidence against Cosby are not admissible at the retrial.

“No references shall be made as to opinions about the credibility of the evidence,” O’Neill wrote in the court order.

Prosecutors had sought to keep all references to Castor’s 2005 press release out of the retrial, which gets under way on Monday.

In the now infamous Feb. 17, 2005, press release, Castor wrote that after consulting with county and Cheltenham detectives he found that “insufficient” evidence existed “upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt.”

Castor added at the time, “After this analysis, the district attorney concludes that a conviction under the circumstances of this case would be unattainable.”

Current District Attorney Kevin R. Steele argued in court papers that the opinion of Castor, his onetime political rival, was not relevant and should not be presented to a jury by the defense team at Cosby’s retrial.

“There is simply no legitimate, relevant purpose to presenting evidence of Castor’s publicly-stated reasons for declining prosecution, which centered on his alleged opinions about the admissibility and credibility of the evidence. His opinions on those subjects are not remotely relevant,” Steele argued in court papers to keep the 2005 press release out of the trial.

Steele also complained that defense lawyers implied during Cosby’s first trial last June “that other police, detectives and prosecutors believed the case was incredible and weak.”

Steele asked the judge to preclude from the retrial “the assertion that the decision not to file charges in 2005 reflected the opinion of any other law enforcement agents that the victim was incredible or that the evidence was otherwise infirm.”

Defense lawyers Thomas Mesereau Jr., Kathleen Bliss and Becky James argued evidence regarding Castor’s press release “could become relevant” to the issue of witness credibility and reliability during the retrial.

William Henry Cosby Jr., as his name appears on charging documents, faces three counts of aggravated indecent assault in connection with allegations he had inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home after plying her with blue pills and wine sometime between mid-January and mid-February 2004.

Cosby, 80, has maintained his contact with Constand was consensual.

Constand reported the allegations to authorities for the first time in 2005.

After an investigation, Castor, who was district attorney at the time, declined to file charges and issued the press release that explained his reasons. Castor was district attorney until 2008 and was succeeded by Risa Vetri Ferman, who remained district attorney until taking office as a judge in 2016.

Prosecutors reopened the Cosby investigation in July 2015 after Cosby’s deposition connected to a 2005 civil suit brought by Constand was unsealed by a federal judge. In that deposition, Cosby gave damaging testimony, allegedly admitting he obtained quaaludes to give to women with whom he wanted to have sex.

Prosecutors charged Cosby on Dec. 30, 2015, before the 12-year statute of limitations expired for the alleged crimes. Steele, who was elected district attorney in November 2015 and took office in January 2016, is leading the prosecution.

Steele and Castor were once political rivals, battling for the district attorney’s post during the sometimes heated campaign in November 2015. Castor, a Lower Salford Republican who served as district attorney from 2000 to 2008, lost his bid to regain the seat during the contest with Steele, a Lower Merion Democrat.

During the campaign, Steele, who was then first assistant district attorney, in a 30-second television ad, attacked Castor for not charging Cosby in 2005 when Constand first claimed Cosby sexually assaulted her at his Cheltenham home.

Judge O’Neill ruled on Friday that evidence referencing the 2015 campaign also is inadmissible at the retrial. Steele argued that evidence was irrelevant and should be excluded.

Cosby’s first trial last June ended in a mistrial when jurors could not reach a verdict. Steele immediately vowed to seek a retrial.

Cosby remains free on 10 percent of $1 million bail, pending the retrial and faces a possible maximum sentence of 15 to 30 years in prison if convicted of the charges.

The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.