Former Prosecutor Waylays Bill Cosby’s Long Road to Indictment

"All of these were pieces of things I relied on at the time," he said. "The lack of prompt complaint and the inability to gather forensic evidence from the home or person is one piece. Contacting a civil lawyer before going to the police department is another piece."

Though Castor's successors in the DA's office did not consult him about charging Cosby, he said he sent District Attorney Risa Furman an email urging her "to tread carefully."

"In my opinion she was exposing the county and herself to civil liability," Castor said, noting that he also had a copy of the email delivered to Furman's office the next day.

Furman left office last year to run for a county judgeship. Castor lost the race for her office to the new DA, Kevin Steele.

In the motion to dismiss, defense attorney McMonagle argued that Steele was motivated only by political gain to prosecute Cosby now.

"Mr. Cosby is not asking for 'special treatment,' he is asking for what any citizen should expect from the government - that the District Attorney's Office will not play 'gotcha' with its citizens' constitutional rights and breach its agreements with them," the Jan. 28 motion states.

The agreement to which McMonagle referred is a nonprosecution deal he says Cosby reached with the Montgomery County DA's Office back in 2005 with Castor at the helm.

Cosby was represented in this matter by his former attorney, Walter Phillips Jr., who died February 2015.

Testifying Tuesday about his enduring "great respect" for Phillips, Castor said the attorney told him in 2005 about wiretaps that he suspected "non-law-enforcement personnel" had used to obtain incriminating recordings of Cosby.

"Ms. Constand, and I believe her mother, were involved in an effort for Mr. Cosby to pay them money so she would not go to the police and report him for the incident in January 2004," Castor said. "In my opinion, there was no chance he [Phillips] was lying about the existence of records. He was a man that I knew for 20 years and would not lie to a district attorney. I told the police to go find them, and they did find those records."

Noting his own role in revising state wiretap laws, Castor said he was skeptical that any court would admit wiretapping evidence against Cosby.

"There was insufficient credible evidence upon which any charge against Mr. Cosby could be proved beyond a reasonable doubt," Castor said.

The former DA added that he felt like he had two choices: "leave the case open and hope it got better, or definitively to close the case."

Since Constand had already waited a year to go to police, Castor said he believed "it would not get better with time," so he chose to close the case.

"It was better for justice to make a determination that Mr. Cosby would never be arrested," Castor said. "I did that because of the special rules prosecutors have to operate under. While defendant counsel is supposed to do everything in their ability, legally and ethically, to avoid a conviction, the prosecutor is a minister of justice and I did not believe it was just to go forward with a criminal prosecutor. But I wanted some measure of justice. So I made the final determination, as the sovereign of the commonwealth of Pennsylvania to not prosecute Mr. Cosby."

Castor went on at length about the protections he put in place so that Constand's civil suit against Cosby would not implicate the comedian criminally.

"I made the decision as the sovereign, that Mr. Cosby would not be prosecuted no matter what," Castor said. "That then made it that he could never take the Fifth Amendment as a matter of law."

Castor said those decisions are made "for all time," and that by doing so he contributed to making Constand "a millionaire."

"I asked that Cosby not be prosecuted in order to create the atmosphere, or the legal conditions, such that Mr. Cosby would never be allowed to assert the Fifth Amendment in a civil case," he said. "Because I thought and I still think making Mr. Cosby pay money to Ms. Constand is the best we could do."

Castor said he believed the "defects" in Constand's civil case meant that "case could not be won," and that he crafted the press release about not charging Cosby for Constand's benefit.

"My words would have been heard by every prospective juror in the civil case," Castor said. "Since I decided I wanted Mr. Cosby punished in the civil court, I didn't want them [the jurors] to hear that I had serious doubts of Ms. Constand."

"I didn't want her [Constand] to be vilified, and I wanted to encourage people to come forward if they were sexually assaulted, not a deterrent for those molested to go to the police," Castor added.

By crafting the 2005 press release the way he did, Castor said he hoped "the broader legal community" would understand that it kept Cosby from invoking the Fifth Amendment.

Castor denied that he reached an "agreement" with the comedian, insisting it was "a judgment, by the sovereign representative of the commonwealth, to not prosecute Cosby, so Cosby could not exercise the Fifth Amendment."

Judge Steven O'Neil is expected to rule on Cosby's motion after the hearing reconvenes Wednesday morning.

Best Lawyers named Cosby's new attorney, Brian McMonagle, as the Best Philadelphia Criminal Lawyer of 2015. Philadelphia Magazine also included the named partner with McMonagle, Perri, McHugh, & Mischak in its Super Lawyers Top 100 list.

The attorney requested either that the court drop the charges against Cosby or disqualify the Montgomery County District Attorney's Office.

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