Ex-Prosecutor: Phone Calls ‘Incriminate’ Bill Cosby in Rape

Conversations between Andrea Constand and her accused rapist suggested he was guilty, an ex-prosecutor says. Problem is the recordings couldn’t be used.

02.02.16 10:35 PM ET

NORRISTOWN, Pennsylvania — The prosecutor who declined to charge Bill Cosby with rape in 2005 said Tuesday that secret phone recordings incriminate the comedian but would’ve been inadmissible in court.

Bruce Castor, the former district attorney of Montgomery County, said at a hearing that “illegally obtained wiretaps” by Andrea Constand and her mother had information that “could be construed as incriminating” of Cosby. The recordings were made after Constand says Cosby drugged and sexually assaulted her in 2004, according to Castor. Constand reported the alleged rape to authorities the following year.

Cosby listened to his attorney Brian McMonagle question Castor from the far side of the defense’s table, sitting next to his press-savvy attorney Monique Pressley. Behind Cosby were apparent members of his entourage, including a tall, silver-haired gentleman, a “longtime friend of Mr. Cosby,” a guard said, and a private security guard who never took off his sunglasses.

While Castor said the recordings were damning of Cosby, he “ultimately determined that the wiretaps would be excluded” from any legal proceeding because they were illegal. In fact, Castor said the records were evidence that Constand and her mother “had committed a felony.”

Cosby has always said the sexual contact with Constand was consensual. Neither side was permitted to ask questions about the content of the recordings by Judge Steven O’Neill.

But Castor made clear several times on the stand, as he has never said publicly before, that he believed “Andrea Constand was inappropriately touched by Mr. Cosby,” that he “wanted justice for Constand,” and “wanted to see Mr. Cosby punished.”

Without evidence to corroborate Constand’s story, Castor said, criminal justice was not realistic.

“My choices were to leave the case open and [hope] it got better or close the case and allow the civil court to address,” he said. “In this case I did not think there was any possibility the case would ever get better.”

The only play for the prosecutor as “minister of justice,” Castor said, was to “set the dominoes up” for Constand’s anticipated civil suit against Cosby.

“At that point I decided it was in the better interest of justice to make the decision that Mr. Cosby never be arrested.”

Castor claims he informed Cosby’s attorney (now deceased) and instructed his first assistant D.A., Risa Vetri Ferman, to notify Constand’s counsel that Cosby would not be prosecuted “for all time.” That would “create the legal conditions” for Cosby to waive his Fifth Amendment right against self-incrimination and testify in Constand’s civil trial.

The goal was to make “Ms. Constand a millionaire,” Castor said.

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The settled the case out of court in 2006 for an undisclosed sum.

Cosby’s defense team sought to have the case thrown out Tuesday by arguing that the new prosecutor, Kevin Steele, is not allowed to use Cosby’s testimony against him thanks to Castor’s alleged non-prosecution deal.

Assistant District Attorney M. Stewart Ryan questioned Castor’s credibility under cross-examination by pointing to statements he made in the Bucks County Intelligencer and the Pottstown Mercury News last summer. Castor seemed to suggest the existence of a more formal written immunity agreement with Cosby, which he later explained as a misunderstood reference to his 2005 press release. Castor said Tuesday he did not remember speaking with the Mercury News about the case.

The prosecution contends that Castor did not have the power as a district attorney to grant Cosby immunity from prosecution anyway. Under Pennsylvania law, D.A. Steele wrote in a motion, only a judge can grant an order of immunity.

The hearing continues Wednesday, and Judge O’Neill indicated he will likely rule then on the validity of the immunity that Castor claims he granted.