Evidence Surfaced that may Jeopardize Cosby's Case
CHRISTI PAUL, CNN ANCHOR: Yes, tomorrow night, 8:00 Eastern, "The Person Who Changed My Life." We hope you'll be able to join us for that.</s>VICTOR BLACKWELL, CNN ANCHOR: All right. That's it for us.</s>PAUL: "SMERCONISH" starts now.</s>MICHAEL SMERCONISH, CNN HOST: I 'm Michael Smerconish. We start with breaking news, my exclusive story about comedian Bill Cosby and evidence that I believe jeopardizes the criminal case against him. You'll recall that just a few weeks ago the famous comedian was finally hauled into court in suburban Philadelphia to face charges for sexually assaulting Temple University employee Andrea Constand. This after at least 50 different women - you see many of their faces here, all had come forward to say Bill Cosby had molested them. I have learned that this case, the only criminal charge that Cosby has ever faced might soon fall apart. I have obtained a document that no other journalist has that could blow the case up. I talked about it a bit last night on "AC 360," but now new information. So let me back up and tell you the story. Back in 2005, the then district attorney of Montgomery County, Pennsylvania, Bruce Castor was investigating Andrea Constand's case. Kastor has said that he wanted to prosecute Bill Cosby but believed he didn't have enough evidence to sustain criminal charges beyond a reasonable doubt. Still he thought that Constand might get justice in a civil suit. He claims he made an unusual deal to create an atmosphere where she could get that justice. The DA told the comedian's attorney, essentially "I won't prosecute your client if you promise that he'll testify fully in a civil case." Cosby's attorney allegedly agreed. It was a deal. In the deposition, Cosby admits he had sexual relationships with at least five women outside his marriage, gave prescription sedatives to women he wanted to have sex with and tried to hide affairs from his wife, Cosby says he gave Constand one and a half tablets of Benadryl, an over the counter anti-histamine, that can cause drowsiness to relieve stress. He said that the sex and drug taking were always consensual. Why would Cosby testify so openly? Because allegedly he believed it would never be used against him in a criminal court. The civil case against Cosby was settled and the deposition remained sealed for many years but then last year a judge decided to release a transcript of it, and the explosive charges Cosby faces now are largely based on that transcript which we now know could very well be thrown out of court when the case has a hearing on February 2nd. In the last few days, I obtained an e-mail, this e-mail that I confirm was written by ex-DA Bruce Castor to his successor last year, three months before the charge against Cosby. Only those involved in the case have seen this e-mail until now. It's the only clear record of the deal that was made promising not to prosecute Bill Cosby. Here's a excerpt. Castor wrote, "I can see no possibility that Cosby's deposition could be used in a state criminal case because I would have to testify as to what happened and the deposition would be subject to suppression. I cannot believe any state court judge would allow that deposition into evidence. Knowing this, unless you can make out a case without that deposition and without anything the deposition led you to, I think Cosby would have an action against the county and maybe even against you personally." Bruce Castor has been subpoenaed to appear at the hearing on February 2nd, at which time I believe the case can fall apart. Joining me now, former prosecutor and defense attorney Mark O'Mara, Philadelphia deffense attorney William J. Brennan and defense attorney Areva Martin. Mark O'Mara, what could you as a defense attorney do with the information that I just provided?</s>MARK O'MARA, CNN LEGAL ANALYST: Well, there's no question. I would go to the court and say, look, judge, we have this agreement, it's done. It's an immunity agreement which means you simply cannot use my client's testimony against him. It is the only reason why he testified, was because of the agreement, and it needs to be suppressed. Now I will tell you, Michael, there are a lot of problems with the way Bill Cosby's lawyers handled or failed to handle this 10 years ago. Why this agreement was not iron clad and in writing kept away in a lawyer's safe somewhere to use for a precise time like this, I have no idea. Plus immunity agreements, even if they existed are not iron clad, they're not 100 percent. There's a lot of ways this information can still be used against Bill Cosby if he doesn't act appropriately under that supposed agreement.</s>SMERCONISH: Bill Brennan, give me the view from the ground in suburban Philadelphia on this issue of immunity. Because I know that the current DA says there's a protocol that one must follow for immunity. But immunity is provided by a court. I think this is Castor in the e-mail saying I exercised my DA's discretion.</s>WILLIAM J. BRENNAN, PHILADELPHIA DEFENSE ATTORNEY: Absolutely, Michael. I think to call this an immunity agreement is really to play into the hands of the current district attorney because in his response he says there are formal protocols for immunity agreements and they weren't followed here. This is a promise by the former district attorney who had the authority to bind the Commonwealth in perpetuity not to prosecute. It's very well. I agree with Mark. It is curious that this was not reduced to writing. But it's a very strong possibility that Mr. Cosby may not have wanted a, "immunity agreement." Immunity infers to the public that you have criminal exposure and that because of the largess of the prosecutor, you're getting a pass on your crime. Let's go back to 2004-2005, Dr. Huxtable was the most popular guy in America. I don't think that he wanted an immunity agreement. He wanted what he got which is a binding promise not to prosecute. He gave up a valuable right in testifying under oath at the civil deposition. That bell can never be unrung and a subsequent prosecutor should not and hopefully will not be able to invalidate the agreement that Mr. Castor made.</s>SMERCONISH: Areva, I know this is complicated for non-lawyers. So let me walk through two steps and then I'm eager to hear what you have to say. A petition was filed last Monday by Cosby's lawyers. Here's an excerpt, "The commonwealth through then District Attorney Bruce Castor promised in 2005 that Mr. Cosby would not be charged in connection with these allegations in exchange for Mr. Cosby giving testimony in the complainant's civil case," and then this line which I've highlighted, "Mr. Castor reminded the district attorney's office about that agreement in 2015 before these charges were brought." And Areva, there was no further explanation as to how former D.A. Castor had reminded them. Now we know he did it in writing on September 23rd, three full months before they charged Cosby. Here is another excerpt from the e-mail that he sent. "With the agreement of the defense lawyer and Andrea's lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove him from the ability to claim his fifth amendment protection against self incrimination, thus forcing him to sit for a deposition underoath." So castor's side of it which will be challenged, I 'm sure, by the prosecution, is to say I was trying to do her a favor. I couldn't meet the criminal burden. I tried to set the table for her to get paid in the civil case. Your reaction?</s>AREVA MARTIN, DEFENSE ATTORNEY: Well, Michael, I think this play is very nicely into what Cosby's attorneys have been saying over the last couple of weeks which is that the current D.A. is using Cosby's case to fulfill a political promise that he made, not to pursue justice, not to follow where the evidence takes him, but really to just say to the Commonwealth, "look, I promised you when I was running for D.A. that I would prosecute Bill Cosby no matter what, and now I'm doing what I promised you." This is very troubling to me as a citizen, and anyone should be very troubled by the fact that a district attorney can use his government power that he possesses to make a promise and then a subsequent district attorney can try to undermine that promise simply to fulfill his own political ambition. So I think this is a troubling matter. I hope the case is dismissed because this I think undermines everything we believe in this country about the ability to trust what our government officials tell us and what they do.</s>SMERCONISH: Areva, it occurs to me that the emotional fate of 50 different women is now resting on this one case because it's the only case where he faces criminal charges.</s>MARTIN: And it's a sad thing. Because this is a prime example of such incompetence. I cannot believe that the current district attorney didn't have this information available to him before he filed these charges, yet he wants the entire public, he wants this case to rest on this deposition testimony when we now know that the former district attorney made a very specific promise not to ever use this testimony in a court of law. I don't see how he can move forward with any kind of integrity and prosecute Bill Cosby on the basis of this deposition.</s>SMERCONISH: Mark O'Mara, I don't want to convey to people at home that this will be uncontested. I anticipate and I have a statement that I'll get to in a moment that it will absolutely be contested by the current D.A. who will say we don't believe there was an agreement, or to the extent there was it wasn't binding. Or he'll say that even the former D.A. left open the door that he would bring charges at a later date. Mark O'Mara.</s>O'MARA: Which he did. Let's back up a little bit. An immunity agreement is a tool used by prosecutors. I, as a prosecutor can say, I won't use this information against you. But the idea that they promise forevermore never to prosecute Cosby would be way outside the norm of an immunity agreement. What they can't do is use that precise statement against him in their case in chief. Meaning, if there's other information out there - I'll give you an example. We now have similar what we call, Michael, you know, similar fact evidence. He has a number of other victims out there that he could bring in and say the facts of that case are so similar to the facts of this case that this jury should hear about it. That similar fact evidence was not available 10 years ago and is very significant evidence. So that's the first thing. The second thing, if Cosby were to get on the stand and say something in derogation or opposition to what he said in the deposition, it can still be used. If I go in and say the light was red in my deposition. I go to trial and I say the light was green. Even with an immunity agreement for what we call impeachment, they could then use my deposition statement. There's a lot of nuances here that are not going to be vetted out by one</s>SMERCONISH: Understood.</s>O'MARA: -- decision.</s>SMERCONISH: Can I make one other observation to Bill Brennan. Bill, you know - we're both lawyers in the Philadelphia area. You know that there's been a lot of head scratching among attorneys who say why the heck did Cosby speak to openly in his civil deposition, especially when he had such a skilled attorney at his side. Wouldn't this e-mail explain it? I mean it all kind of fits doesn't it that Cosby spoke so freely because he was testifying without any fear that he might get charged for that which he was about to say?</s>BRENNAN: Absolutely. At the time that the agreement was reached, Bruce Castor was the elected district attorney of Montgomery County, Pennsylvania. In that capacity, he had the absolute authority to bind the Commonwealth, not just during his administration, but through his successor administrations to this agreement, and the problem is, it's fundamentally unfair to renege on the agreement. Mr. Cosby gave up one of the most valuable rights we possess, the right to protect against self incrimination, based on the promise from Mr. Castor that he would not be prosecuted. Now it becomes hot fodder during an election campaign here in Montgomery County in the fall of 2015 and the first assistant district attorney, who is now the D.A., runs basically on this issue. Similar to the '88 Bush-Dukakis campaign when the pardon of Willy Horton was bandied about.</s>SMERCONISH: A political issue. Hey, let me ask -</s>BRENNAN: -- simply says I'll prosecute if you elect me.</s>SMERCONISH: I need to ask Areva something. Areva, I know that the current D.A. is going to rely on a press release that Bruce Castor, the former D.A. issued back in 2005. Here is what it looks like, if we could just put it up on the screen. This was the press release issued February 17 of '05. There's one line in it in the final paragraph that the current D.A., no doubt, will zero in on. It says "District attorney cautions all parties that he will reconsider this decision should the need arise," which seems on its face to suggest the door was always left open to go after Cosby if there were new information coming to light. But I take note of the fact of the preceding sentence, big paragraph. Put it up on the screen if you wouldn't mind. The district attorney does not intend to expound publicly on the details of his decision for fears that his opinions and analysis might be given undue weight by jurors in any contemplated civil action. Here is the point I'm trying to make, I think the old D.A. is going to say when I talked about leaving the door open I meant to me speaking publicly, hopefully, you follow that issue, Areva and can say something about it -</s>MARTIN: Yes, I think the former D.A. is double-talking. He has this private agreement that he's made with Mr. Cosby's attorney, but yet he's issuing this press release where he's talking in code. I just think he has a fundamental problem here as William has said. You cannot make a promise to a citizen not to prosecute him and encourage him to talk freely about things that could be prosecutable and then two years, five years, 10 years later, find that person in the situation being prosecuted on the very issue that you said that you would not use. So when he talked about prosecuting Cosby recently using that deposition, I think that's just disingenuous and it think it's fundamentally unfair. I hope the judge sees it that way.</s>SMERCONISH: Let's wrap up as follows. Each one of you gets a closing statement on the significance of this e-mail sent by the old D.A. to the then D.A. three months before they charged Bill Cosby saying, "hey, you can't do this because we cut a deal." Mark O'Mara, sum up.</s>O'MARA: No question it's going to be significant. I have no idea why it wasn't in writing. I don't even know why his civil lawyers back then had him sit for a deposition when the plan always was to settle this case out. Why even have a deposition? I think that was the second mistake they made. The first big mistake, this should have been in writing and ironclad. It may trash the present prosecution against Cosby.</s>SMERCONISH: You raise a good point, right? If the fix was in to just make the civil case go away, then why not write the check without him ever sitting for it? Bill Brennan, you wrap up.</s>BRENNAN: Michael, I think it's as simple as this. The Commonwealth made a deal with Mr. Cosby. In reliance now to his detriment he gave testimony he otherwise could have protected himself by invoking his fifth amendment rights. That bell cannot be unrung and this case should be dismissed. The Commonwealth should honor this deal.</s>SMERCONISH: Areva Martin, your final thought?</s>MARTIN: Prosecution shouldn't be based on political ambitions of district attorney's, your - that district attorney's decision to run for office should not have hinged on whether he could prosecute Mr. Cosby on evidence that had been previously been agreed never to be used in a court of law.</s>SMERCONISH: Thank you all three of you. I really appreciate your expertise on such an important matter. I want to point out to the audience at home. We attempted to get comment from all the principals involved in this case, former D.A. Bruce Castor won't comment. Current district attorney, Kevin Steal, replied, "there is a specific legal method to grant immunity. That was not done in 2005. In fact, as you can see from Castor's press release in 2005 where he announced he is not filing charges he states, 'District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise.' As we've indicated my office does not try any case in the court of public opinion, we try them in a court of law. We will be filing a response to their motion which will address this issue in depth." Dolores Treani (ph) who represents alledged victim, Andrea Constand, she tells CNN she was not part to any deal, to release Bill Cosby from the threat of prosecution. Now I'm sure many of you have opinions about this latest development. By all means, tweet me @smerconish and I'll read some later in the show. Coming up, another crazy week in politics. Ted Cruz attacked by "The New York Times" for his secret million dollar loan responds by using the story to help raise more money. Meanwhile, Hillary Clinton is losing support even faster than she did in 2008. Can she stop the slide this time?