Bill Cosby's top legal adviser said Wednesday that he never would have let the comedian testify in a 2005 lawsuit if he thought Cosby could still face sexual assault charges in the matter.
Lawyer Jack Schmitt testified that Cosby's legal team considered the criminal case "irrevocably concluded" after a suburban Philadelphia district attorney told them he was closing the investigation into charges Cosby drugged and violated Andrea Constand at his suburban Philadelphia mansion in 2004.
Schmitt said Cosby later sat for a deposition in Constand's civil suit over four days and never once invoked his Fifth Amendment right against self-incrimination.
"We did that knowing the criminal matter had been concluded and could not be reopened," Schmitt said.
Schmitt took the stand on Day 2 of a bid by the TV star's lawyers to get the sexual assault charges against Cosby thrown out. They say then-District Attorney Bruce Castor gave Cosby immunity from prosecution in the case a decade ago.
Cosby, 78, was arrested and charged in December by Castor's successors, who reopened the investigation after his damaging testimony from the deposition was unsealed last summer and dozens of women came forward to say he violated them.
The TV star known as America's Dad could get 10 years in prison if convicted of sexually assaulting Constand, a former Temple University athletic department employee.
If criminal charges were still a possibility, "we certainly wouldn't let him sit for a deposition," Schmitt said.
In the deposition, Cosby acknowledged obtaining quaaludes to give to women he wanted to seduce. He also admitted reaching into Constand's pants but said it was consensual.
The current DA, Kevin Steele, has argued that Castor's 2005 decision is not binding on current prosecutors. It was never put in writing in a legal document. The only written evidence of a no-prosecution pledge came in an opaque press release sent out by Castor.
Under questioning by Steele, Schmitt acknowledged that he relied on both the press release and assurances that Castor gave a decade ago to Cosby lawyer Walter Phillips — who is now dead. "There was no other written agreement," Schmitt said.
Judge Steven T. O'Neill said he hoped to rule Wednesday on the request to throw out the charges.
In the morning, supporters yelled, "We love you, Bill!" as the comic made his way slowly into the courthouse with assistants to either side of him. Cosby uses a cane, and his eyesight is said to be badly deteriorating.
Castor was the star witness for the defense on the first day of the pre-trial hearing. He testified that he believed Constand's story but found serious flaws in the case in 2005 and declined to bring charges.
He said that as district attorney, he considered the decision final and binding "for all time" on his successors.
The former DA said that in ruling out any prosecution of Cosby, he hoped to prod the TV star to testify in the lawsuit. "I was hopeful that I had made Ms. Constand a millionaire," he said. Constand eventually settled for an undisclosed sum.
"If there was an agreement, why didn't you make that agreement in writing?" the judge asked Castor.
"It was unnecessary because I concluded there was no way the case would get any better," he said. He also said Cosby was afraid such an agreement would make him look bad.
Dozens of women have accused Cosby of drugging and sexually assaulting them since the 1960s, destroying his good-guy image as America's Dad. But the statute of limitations for prosecuting him has run out in nearly every instance. This is the only case in which he has been charged.
Castor defended his decision not to bring charges, citing among other things Constand's yearlong delay in reporting the allegations, her continued contact with Cosby, and suggestions that she and her mother might have tried to extort the TV star.