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Cosby's immunity claims smacked down by judge

After days of testimony, Cosby's attempt to get charges against him thrown out was denied.

Following two days of contentious testimony, on Wednesday evening a Montgomery County judge ruled that Bill Cosby is not protected from sex assault charges under what a former prosecutor claimed was a 2005 decision permanently closing the case.

Judge Steven O’Neill said he found “no basis to grant the relief requested,” in a five minute announcement of his decision, and dismissed a defense habeas corpus motion on the basis of the alleged agreement.

The ruling came after a back-and-forth between Montgomery County prosecutors and Cosby’s team of top-shelf attorneys.

Cosby’s lawyers argued that formerMontgomery CountyDA Bruce Castor permanently immunized Cosby from sex assault charges in the Andrea Constand case when he closed the case in 2005.

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Castor’s credibility was assaulted by his successor Kevin Steele in closing arguments Wednesday afternoon.

RELATED:Former DA throws monkey wrench into Cosby case

“Credibility is out the window at this point,” Steele argued — pointing out that Castor said at different times in media reports and letters around 2015 that prosecution against Cosby was not precluded, and that the Constand case could be revisited if new evidence surfaced.

Constand’s civil lawyer Dolores Troiani and her former co-counsel Bebe Kivitz had both testified earlier Wednesday that they weren’t aware of any such agreement — flying in the face of Castor’s testimony that he made the decision to help their lawsuit, and with their knowledge, as he testified Tuesday.

“No lawyer for Cosby ever mentioned that there was any agreement, ever,” Troiani asserted.

Cosby’s defense lawyer Christopher Tayback protested that even just an oral promise from a prosecutor was legally binding.

“A promise by a prosecutor is enforceable,” Tayback argued. “He’s not looking for special treatment. If any other defendant had the former sitting DA come in and testify, there would be no prosecution.”

After Judge O'Neill's ruling terminating the non-prosecution deal, lawyers argued whether DA Kevin Steele should be disqualified from the Cosby case over statements made during his campaign for the DA's office in 2015 and retweeting an article about the Cosby case.

O'Neill dismissed that motion, finding "no misconduct" and and ruling that none of Steele's actions during his campaign disqualified the Montgomery County DA's office from handling the case.

Cosby's preliminary hearing was then scheduled for March 8.

Check back with Metro for more as this story develops.

1 p.m.

A hearing on whether Bill Cosby can even legally be charged with sex assault for a 2004 incident adjourned Tuesday afternoon without the judge making a formal decision.

A decision is expected this afternoon.

Testimony got heated during the second day of a hearing over whether a decision by former Montgomery County District Attorney Bruce Castor not to prosecute Bill Cosby for the sexual assault of Andrea Constand was permanently binding for all future prosecutors.

Current Montgomery County DA Kevin Steele handled the case personally and sneered at Castor’s statements on Tuesday that his decision not to prosecute Cosby for assaulting Constand was a “sovereign edict” that bound all future prosecutors from charging Cosby.

“"He says, 'Mr. [Brian] McMonagle, [Cosby’s lawyer] ‘I’m not on your team, I want them to win,’ and then stands up and says, ‘You can’t prosecute because I am the sovereign and I made this edict,’” Steele scoffed. “Sovereign edict … it’s not documented anywhere through this proceeding, even in their own documents.”

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right,” Steele argued. “It’s not reasonable to not have this in writing. … It’s not reasonable for them to rely on this supposed unilateral transactional agreement."

But Cosby’s lawyer Christopher Tayback argued that any agreement made by Castor was legally binding.

“What Mr Castor did was lawful,” Tayback argued. “The current DA’s hands are bound. Mr. Castor made the deal he had made, he made the promise he had made.”

Even if Castor’s agreement was only oral, it would still be binding, Tayback said.

“What we’re talking about here is honoring a commitment.”

Earlier in the day, New York lawyer John Schmitt, Cosby’s general counsel, claimed that Cosby would never have admitted to drugging and touching Constand in a deposition for her civil lawsuit without knowing he could never be charged for that crime.

“Can you tell me if this was so important, having an agreement, why there’s no place in the stipulations, in the depositions, that refers to the Fifth? This agreement?" Steele asked, voice rising to a shout.

“I can hear you. You don’t have to yell at me,” Schmitt replied huffily.

Schmitt said the agreement with Castor never needed to be memorialized or documented in any other way than a 2005 press release by Castor.

“I relied on the combination of the press release signed by Mr. Castor, and his oral assurances to Wally Phillips, who assured me it was sufficient,” Schmitt testified.

 
 
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