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Prosecutor Deals, the Bill Cosby Criminal Case, and Probable Cause Examining Trials in Texas

The Bill Cosby scandal continues to grab headlines almost daily: we all know about how the famous comedian was arrested in December 2015 on felony sexual assault charges up in Pennsylvania. This, on top of all the civil defamation lawsuits that have been filed against Cosby, and the countering claims he’s filed as well.

Read the Criminal Complaint filed against Bill Cosby on December 29, 2015 here.

It’s a mess. And right now, the big news is from Cosby’s defense team: they are arguing that long, long ago (2004) the District Attorney made a deal that Bill Cosby would not be prosecuted on the very charges that were filed against him last month.




Cosby’s Motion to Dismiss Because of Prosecutorial Misconduct

Cosby’s team has filed a motion to dismiss the charges against Bill Cosby because (1) it’s much too late to prosecute this case; and (2) the felony charges have been “illegally, improperly and unethically brought by District Attorney Kevin Steele and his office.”

How so?

From the motion, the charges filed against Bill Cosby “… violate an express agreement made by the Montgomery County District Attorney in 2005, in which the Commonwealth agreed that Mr. Cosby would never be prosecuted with respect to the allegations of sexual assault made by complainant Andrea Constand.”


“This agreement, made for the express purpose of inducing Mr. Cosby to testify fully in Ms. Constand’s civil litigation against him, led Mr. Cosby to give deposition testimony in 2005 and 2006 without invocation of his Constitutional rights against self-incrimination. Now, to fulfill campaign promises, the newly-elected District Attorney has repudiated the agreement and has based these criminal charges on the very testimony Mr. Cosby gave in reliance on the Commonwealth’s non-prosecution agreement.”

That’s prosecutorial misconduct — sadly, a pretty common defense these days.

Of course, the prosecutor has issued a press release that refutes these allegations. They are “meritless” but he gave no details — just that this cause would be “tried in a court of law” and not in the “court of public opinion.”  Right. Like it’s not smack dab in the court of public opinion already.

Did the Cosby Prosecutor Renege on the 2005 Deal? This is Important to All of Us.

Wow. If this is true — i.e., that the prosecutor broke an agreement made in good faith years ago by his predecessor with Cosby and his lawyers — then this is a big deal not only for Bill Cosby, but for all of us. After all, state attorneys all over the country watch the news and read the papers.

What do criminal defense lawyers in Pennsylvania, as well as the rest of the country, do with a situation where a prosecutor doesn’t respect agreements made years past, by those in the job at the time?

  • Can we make plea deals and negotiate with DAs and AUSAs and trust that the deal will stick?
  • Can we trust the prosecutor with any representations that are made in an official capacity?
  • If ignoring that past agreement is allowed in the Cosby case, will other prosecutors take it as a sign that they are free to do the same?

It’s bad enough that we’ve had recent precedent set by a judge in a much-publicized case who ignored the plea agreement hammered out in another high-profile sex crime case. For details there, see our post on the sentencing of Mr. Fogel in “Child Pornography Arrests: Lessons From The Ex-Subway Pitchman’s Sentencing.”

The question: if you are facing sex crimes charges – or any serious felony charges – or any charges that merit media scrutiny, then can you feel safe entering into any kind of negotiations with prosecutors? How is the defense lawyer going to make sure that the deal sticks over time? It’s something to consider, isn’t it?

February 2016 Hearing for Bill Cosby: Preliminary Hearing

At the upcoming hearing, the Probable Cause Affidavit filed by the state attorneys will be challenged. That’s pretty standard procedure in a criminal case.

In it, 2004 investigators allege under oath that Bill Cosby “sought to incapacitate” Andrea Constand by giving her both pills and some wine. After she drank the wine and took the pills, according to the Probable Cause Affidavit, Andrea Constand was alleged to have been incapacitated to the extent that she could not give consent to sexual activity with Cosby.

Read the full 20 page Probable Cause Affidavit here.

The Smoking Gun? CNN Releases 2015 EMail Between the DAs

And, in an interesting twist, CNN has found and released a 2015 email that was sent by the man who served as the Pennsylvania district attorney back in 2005, Bruce Castor, to the guy who took over the job, Risa Vetri Ferman, that explains the verbal deal that Castor made with Cosby’s lawyers back then. Talk about a smoking gun!

This email gives details on the deal and the reason behind it – to take away Cosby’s need to invoke his Fifth Amendment right to not testify against himself (right against self-incrimination) in order to help Andrea Constand with her civil case against Bill Cosby. The deal was done so that Cosby would be able to testify in a civil deposition without taking the Fifth.

Three months after this email was sent, the criminal charges were filed.

Probable Cause Hearings in Texas: Examining Trials

What is happening at this February 2016 hearing is akin to what happens here in Texas at the Examining Trial.  In Texas, if a felony is involved, the state must bring its case before a state district judge to have their papers graded. This is called the “examining trial.”  Probable cause is at issue here.

You get an examining trial on a felony charge in Texas IF YOU ASK FOR ONE.  Here’s an example of a form asking for this probable cause review for Dallas County.  

It’s here that the defense lawyer gets an opportunity in open court to refute the prosecutor’s case. Witnesses can be put on the witness stand to give testimony. Documents can be admitted into the record, too.

Cases Get Tossed at Probable Cause Hearings / Examining Trials

For many people who have been arrested in Texas, that examining trial (probable cause hearing) is a God-send. It’s a procedure that allows them the chance to have a judge check out what the prosecutor has been doing.

If there’s a good argument that the prosecutor has committed misconduct, like breaking a deal or hiding exculpatory evidence, or if the prosecutor is simply over-zealous and doesn’t really have a case, then the person is freed pretty early in the process.

Arguably, if you are facing serious felony charges it’s best from a defense lawyer’s point of view to get the work started on your defense while you are being investigated — so things can be ferreted out and hopefully, a “no bill” can be issued by the Grand Jury.

However, the next best thing from a defense perspective is to get that defense work revved as soon as possible after the arrest, so that the case can be fought at the examining trial.

As for Bill Cosby, let’s see what happens at his probable cause hearing on February 2nd. It’s going to be interesting. And it’s probably going to be televised.


For more information, see our web resources page for Sex Crimes as well as Michael Lowe’s Case Results.  Also check out Michael Lowe’s In Depth Article on the TOP 10 MISTAKES IN SEXUAL ASSAULT AND INDECENCY WITH A CHILD CASES.

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