It started with a press release.
On Feb. 17, 2005, I was sitting at my desk at the Philadelphia Daily News wrapping up my work for the day when I got a fax from the office of Montgomery County District Attorney Bruce L. Castor Jr.
The fax was timestamped 5:45 p.m.—I still have it—and it was shocking for a number of reasons.
Nearly a dozen other women had come forward already—the number would swell in the years to come—saying Cosby had done the same or similar things to them, which briefly led Constand’s attorneys to hope Castor was going to actually prosecute the disgraced comedian after all.
Not only that, Castor wrote it himself and faxed it to the press himself—a first the technically-challenged DA later testified about in a court of law. Constand and her attorneys say he never even bothered to let them know of his decision beforehand.
It also came as a shock to his own detectives, who just that morning had come up with a list of follow-up interviews they wanted to do on the case.
But in no way, shape, or form was there any inkling this was anything but a press release. Because, why would it be anything other than what it clearly was?
That would come later, when Castor argued it was also a promise not to prosecute the since-disgraced comedian in exchange for his testimony in a civil case. The bizarro move was quintessential Bruce Castor, and it helped make Bill Cosby a free man on Wednesday.
On Dec. 30, 2015, Cosby was arrested and charged with aggravated indecent assault for drugging and sexually assaulting Constand at his Elkins Park, Pennsylvania, mansion in January 2004. By then, Castor was already claiming that that press release was also an agreement never to prosecute Cosby for the crime, and after Cosby was arrested, his attorneys immediately filed a motion to dismiss based on that very notion.
In February 2016, I watched Castor testify for several hours in a Montgomery County courtroom about this arrangement. The gist of his testimony was that Castor had promised Cosby he would never be prosecuted for this particular crime, which is why Cosby was so “cooperative” during the deposition, and waived his Fifth Amendment right not to incriminate himself.
That in and of itself was actually a joke, as Cosby stormed out at one point, and they had to stop the deposition more than once to file a motion to compel, to get the judge to force Cosby to answer certain questions, as Dolores Troiani, one of Constand’s attorneys, later testified.
Montgomery County Judge Stephen O’Neill, who presided over both subsequent criminal trials, presided over this hearing as well. He seemed perplexed, pointing out that, under state law, a judge has to sign off on an immunity agreement. When did that happen? Where was the proof?
Castor said he told Risa Ferman, who was his first assistant at the time and the DA when she decided to reopen Constand’s case in 2015, to notify Constand’s attorneys about the agreement, and assumed she had done so. However, in emails between him and Ferman from the fall of 2015 that were included as exhibits, Ferman said she had no idea what Castor was talking about.
O’Neill asked Castor again why he didn’t follow the state’s immunity statute by making an agreement in writing with the plaintiff’s attorney. Castor insisted he didn’t need anyone’s approval because he was the “sovereign” of Montgomery County.
That’s where things got truly surreal.
“The prosecutor, according to Pennsylvania rules, [is a] minister of justice,” Castor said. “And I did not believe it was just to go forward with the criminal prosecution. I wanted there to be some measure of justice. So I made the determination as the sovereign—and not Bruce Castor, district attorney. I am the sovereign of Montgomery County. As the sovereign, I determined we would not prosecute Cosby, and that would then set off a chain of events that I thought as a minister of justice would gain some justice for Andrea Constand.”
When Dolores Troiani and Bebe Kivitz, Constand’s attorneys, took the stand, they disputed nearly everything Castor said—and they did so again on Wednesday.
In the end, O’Neill ruled against Cosby’s defense, in essence saying he did not find Castor’s testimony credible, and denying their motion to dismiss the charges. But Castor stuck to that story, and it eventually became part of Cosby’s post-conviction appeal.
In the Pennsylvania Supreme Court’s shocking decision to overturn Cosby’s conviction Wednesday, it ordered Cosby’s immediate release from prison—and barred the prosecution from trying him a third time. The court based its decision, of course, on the idea that Cosby relied on an agreement with Castor to pass on his Fifth Amendment right not to incriminate himself.
That is despite a lack of proof of a deal beyond a press release—and Castor’s claims.
It was a stunning end to a case that has had more than its share of twists and turns since 2005, but I can’t honestly say I was surprised by it. I fully expected the state Supreme Court to rule in Cosby’s favor after I watched the oral arguments in December. The justices were openly hostile to the prosecution, and at one point, the chief justice just walked away and turned his camera off.
He was gone for about 10 minutes.
However, I thought, if anything, the court would rule on whether the five other accusers who testified—so-called 404b witnesses, who spoke to a pattern of predation—should have been allowed to testify against Cosby. The whole press release was an immunity agreement argument seemed frivolous to me, and certainly not credible. Clearly, the state Supreme Court disagreed.
And if it is true, Bruce Castor—who has since, fittingly, enjoyed a star-turn as a disastrous impeachment lawyer for Donald Trump—basically admitted to giving preferential treatment to Cosby. What other defendants get personal guarantees from a prosecutor not to be charged criminally? Ever? With no written agreement signed off on by a judge? And in possible violation of the state’s own laws on how to conduct such agreements?
I puzzled over Castor’s behavior in 2005 when it came to this case: the heartless way he treated Constand; his obvious reluctance to fully investigate the allegations against Cosby.
But it seemed like justice had finally prevailed when Cosby was convicted in 2018—that Cosby’s wealth, power, and privilege could no longer shield him from facing the consequences of his actions.
If nothing else, Wednesday’s decision proved me wrong on that count. Bruce Castor’s fax was effectively the final word.