Cosby: Prosecutor bound by predecessor's promise not to prosecute

In a brief filed with the Pennsylvania Superior Court this week, Bill Cosby's attorneys said former Montgomery County District Attorney Bruce L. Castor Jr. had the authority to promise that Cosby would never be prosecuted for sexual assault allegations brought by Andrea Constand in 2005, reported The Legal Intelligencer. 

In addition, they argued that the District Attorney's Office had no valid reason for its 10-year delay in bringing charges against Cosby.

The brief said Cosby relied on Castor's promise when he testified in a civil case against him, which ended in a confidential settlement in 2006.

"As Mr. Castor testified, making such commitments is a common part of a district attorney's job," Cosby's appellate brief said. "A change in the person occupying the position of district attorney is of no moment."

After a two-day hearing surrounding the alleged nonprosecution promise, Judge Stephen T. O'Neill decided in February that the criminal case against Cosby could proceed. Cosby appealed O'Neill's decision, and the case was stayed while the appeal is pending.

Cosby's appellate brief said Castor's testimony "left no room for any conclusion other than that the commonwealth bound itself not to prosecute" Cosby.

Attorneys for Constand also testified at the hearing, as did a lawyer for who has represented Cosby for a number of years, but is not representing him in the criminal case.

O'Neill wrote in his one-page order that a credibility determination was inherent in the court's ruling.

Cosby's brief acknowledged that Castor testified that his promise not to prosecute was not a formal agreement in a contractual way. But that is not determinative, it said, because the elements of promissory estoppel are met.

"Even if the district attorney had failed to follow proper procedures in making his nonprosecution commitment or in granting immunity, the commonwealth cannot use its own errors to renege on its commitment," it said.

Cosby also argued that if there were any dispute over Castor's promise, the delay in bringing charges materially prejudiced Cosby. Castor told Walter Phillips, an attorney for Cosby in 2005, about his promise, it said, but Phillips is now deceased and cannot testify to the existence of that commitment.

When Montgomery County District Attorney Kevin Steele announced the charges against Cosby in December, he noted that additional evidence that came about in July 2015 had played a role. At that time, information from Cosby's civil suit with Constand became available to the public, including portions of his deposition testimony in which he admitted obtaining prescription drugs in order to have sex with a woman.

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