Byko: Will 'America's Dad' be convicted? Unlikely

BILL COSBY'S LUCK ran out on a dark and rainy Wednesday in a Norristown courthouse. He lost the legal battle, but I suspect, unhappily, that he will win the war.

Common Pleas Judge Steven O'Neill nixed Cosby's motion to dismiss the sexual-assault charges brought against him in December. The 78-year-old entertainer argued that he was shielded by a promise to not prosecute made a decade ago by then-Montgomery County D.A. Bruce Castor.

My colleague Jenice Armstrong fumed Wednesday that Castor didn't prosecute Cos and seemed to be blaming the victim.

I see it differently, maybe because I'm male, or maybe because I seldom pick fights I know I can't win.

The question isn't whether Cosby sexually assaulted Andrea Constand. I believe he did, Castor believes he did, and Cosby practically admitted he was a pill-dropping horndog in civil-trial testimony. But beliefs are not evidence.

Once he gave the star immunity from prosecution, Castor reasoned, that would induce Cosby to testify in the civil action brought by Constand (currently suing Castor for defamation).

Armstrong feels that Castor should have taken Cosby to trial and gone down swinging rather than throwing in the towel.

That's called a beau geste, a noble gesture, but lacking substance. To me, a trial would have simply wasted the taxpayers' money and the court's time.

In 2005, when Constand reported the crime - a year after it happened - the besweatered Cosby's reputation was still sterling. He was "America's Dad" and the smiling purveyor of Jell-O Pudding Pops. This was long before dozens of other allegations of drugging and sexual assault.

In a criminal trial, the state must convince all 12 jurors of guilt beyond a reasonable doubt. That would have been tough to do for "America's Dad."

Constand waited a year before going to police, she talked to a civil attorney first, she was in contact with Cosby after the alleged assault, her statements to investigators were inconsistent, and her mother had been in contact with Cosby.

Castor knew these facts when he said that Constand had "ruined her credibility as a viable witness." He wasn't heaping blame on the former director of operations for the Temple University women's basketball team. He was signaling that her actions were chum for a defense-attorney shark who needed only to create doubt in the minds of jurors.

In court, it would have been a "she said, he said," with the accuser being a Canadian attacking one of America's most beloved entertainers.

Castor believed that was an unwinnable case. When he agreed not to prosecute so that the civil trial could move forward, he thought he was making Constand a millionaire.

She won an out-of-court settlement, we don't know how much. My guess: plenty.

As to the promise not to prosecute, I find it unbelievable that Cosby's attorney, Walter Phillips, would not have gotten it in writing.

Also unbelievable to me is Jenice's reporting that 98 percent of rapes go unpunished. When I say "unbelievable," I don't mean I don't believe it. I mean it is hard to accept.

Outside the courthouse Wednesday, some Cosby fans cheered and applauded him, even now, unbelievably.

That's why I believe that in 2005, a conviction was not possible. Sadly, I believe the same today.

Through no fault of her own, Constand crippled her credibility.

That there are still people outside a Norristown courthouse who cheer Bill Cosby, unbelievably, tells me the prosecution is unlikely to get 12 jurors to send "America's Dad" to jail for a decade.

Email: stubyko@phillynews.com

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