Bill Cosby’s lawyers are arguing in court for a second day that sexual assault charges against the comedian should be dropped because the state declined to prosecute the case more than a decade ago.
Cosby’s lawyers started Wednesday’s hearing by calling lawyer John “Jack” P. Schmitt, who represented Cosby in 2005, to testify that the then-district attorney of Montgomery County, Pennsylvania, declared that Cosby could not be prosecuted in connection with allegations made by Andrea Constand.
The comedian’s lawyers are asking a Pennsylvania judge to dismiss the case, in which Constand — one of a long line of Cosby accusers but among the first to contact authorities — accuses the comedian of assaulting her in his home in 2004.
Cosby was charged in the case in December, 11 years after the state initially declined to prosecute.
In addition to denying the allegations, Cosby argues he’s being improperly prosecuted based on testimony he gave during a civil suit — testimony his defense says was given only because the state closed the criminal case in 2005.
During testimony in the pretrial hearing Tuesday, the prosecutor who declined to charge Cosby in 2005 conceded he believed Pennsylvania was barred from charging Cosby in the Constand case “for all time.”
“Mr. Cosby was not getting prosecuted, at all, ever, as far as I was concerned,” former Montgomery County District Attorney Bruce Castor testified Tuesday. “… I made the decision as the sovereign that Mr. Cosby would not be prosecuted, no matter what.”
As Cosby listened in the courtroom, Castor testified that he did so in part because he didn’t believe the case was strong enough for a conviction.
Castor also said he thought the move might help Constand successfully sue the entertainer. He essentially conceded that the only reason Cosby testified in Constand’s subsequent 2005 civil suit — the very testimony that prosecutors are now using to charge him — was because he took any potential prosecution off the table.
When Castor declined to prosecute in 2005, he said, Cosby couldn’t claim Fifth Amendment protection against self-incrimination in the civil suit.
“Cosby would have had to have been nuts to have said those things (in the civil deposition) if he thought he was going to be prosecuted,” Castor said.
Read more: CNN