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What's next in Cosby case?

The sexual-assault case against Bill Cosby cleared its first major hurdle last week, when a Montgomery County judge rejected the entertainer's request to drop the charges because his defense team said they violated a non-prosecution pledge by a former district attorney.

A Montgomery County Court judge refused last week to drop charges against Bill Cosby, accused of sexual assault. His defense team has said it plans to appeal the ruling.
A Montgomery County Court judge refused last week to drop charges against Bill Cosby, accused of sexual assault. His defense team has said it plans to appeal the ruling.Read moreMICHAEL BRYANT/Staff Photographer

The sexual-assault case against Bill Cosby cleared its first major hurdle last week, when a Montgomery County judge rejected the entertainer's request to drop the charges because his defense team said they violated a non-prosecution pledge by a former district attorney.

But the issue is far from over.

Within hours of Common Pleas Court Judge Steven T. O'Neill's ruling Wednesday, Cosby's lawyers announced they would appeal - a move that, if allowed to proceed, could derail plans for a March 8 preliminary hearing on the evidence and tie up the case for months.

Prosecutors contend O'Neill's decision isn't one that can be appealed. And appeals typically occur only after a criminal case has been heard by a jury or judge.

But in certain circumstances - such as a reversal of a ruling that could drastically change the outcome of the case - defendants can ask a higher court for early review.

"It's an uphill battle for the defense, but they have some arguments as to why this should be heard now rather than later," said David Rudovsky, a civil rights attorney and University of Pennsylvania law professor.

Such an issue must be so important "that unless we resolve it now the trial can't go forward," said defense lawyer Jeff Lindy, part of a defense team that tried that appeal approach, unsuccessfully, when it challenged the legality of charges before the 2012 Philadelphia clergy sex-abuse trial. "It has to be an issue that if decided in the defendant's favor would turn the tide of the case."

Cosby's lawyers believe O'Neill's ruling is just that type of decision.

They argued that former Montgomery County District Attorney Bruce L. Castor Jr. promised Cosby in 2005 that the entertainer would never be prosecuted for an alleged attack on Temple University basketball manager Andrea Constand.

In exchange, they said, Castor expected Cosby to sit for a deposition without asserting his Fifth Amendment rights in a civil lawsuit Constand filed against him.

During hours of testimony Tuesday, Castor told the judge that questions over Constand's credibility and her statements to police in 2005 persuaded him he couldn't win a conviction. He said his pledge not to prosecute Cosby - which he maintained could help Constand win a civil judgment - was valid both at the time and had to be honored for prosecutors who succeeded him in office.

A Cosby lawyer called such an oral promise from a district attorney "100 percent enforceable."

Current District Attorney Kevin Steele balked at the argument, noting there was no proof of such a deal.

Cosby's lawyers have 30 days to appeal - and ask O'Neill to suspend proceedings while they press their case to the higher court. If he refuses, the Pennsylvania Superior Court could also step in and put a hold on other hearings.

The shape of their argument isn't yet clear, in part because O'Neill's reasoning wasn't.

He delivered his opinion quickly, from the bench. And he denied a request by Cosby's team to issue a written opinion elaborating on his factual determinations.

"I made my ruling," the judge said. "I will not make findings of fact because I am not required to do so."

The defense request, said Philadelphia lawyer William J. Brennan, was likely an effort to pin down O'Neill to a more favorable position for their chances at the Superior Court.

The defense case last week largely rested on testimony from Castor. But the former district attorney struggled under cross-examination to reconcile his testimony with his recent statements. In one, he had said that if he had the authority, he would charge Cosby himself if there was more convincing evidence to back Constand's claims that the entertainer drugged and sexually assaulted her at his home in 2004.

Whether the court based its decision on Castor's credibility as a witness could be key, Brennan said. Appellate courts rarely second-guess trial judges on their determinations of witness credibility.

If O'Neill ruled for other reasons, the defense might have stronger grounds to appeal, Brennan said. For one, the issue lacks any clear legal precedent.

"The judge also said he couldn't find any other cases where a similar issue had been raised so early on in the trial and that he wasn't sure what burden [of proof] the defense needed to meet," said Brennan. "That leaves the defense with several options on appeal."

Even if prosecutors' argument prevails and the case does proceed to trial, the defense team could reintroduce the non-prosecution issue, a point even O'Neill acknowledged.

The goal: Keep jurors from hearing the testimony Cosby gave in a deposition a decade ago, when he thought he never would be charged with assaulting Constand.

Steele's office has cited the public release of transcripts of Cosby's sworn statements - which had been kept under court seal until last summer - as part of the reason it decided to reopen the investigation.

In his deposition, Cosby acknowledged a sexual encounter with Constand, which he maintained was consensual. He also testified that he had previously acquired quaaludes with the intent of using them in consensual sexual encounters with women.

Cosby's legal team might still be able to make a case that Castor's decision led their client to believe that if he testified his words would not ever be used against him, said Mark Geragos, a prominent California defense attorney.

"He relied upon it and he was misled, and therefore it wasn't voluntary and he felt he was compelled to do it," Geragos said.

The importance of the deposition in the case remains unclear.

The probable-cause affidavit filed at the time of Cosby's arrest last year quotes the transcript extensively.

But it also relies on new interviews with Constand and other witnesses - as well as the original statements Cosby and his accuser made to police more than a decade ago.

Which is more important could become clearer next month - if prosecutors do get a chance to present pieces of their case at a preliminary hearing.

jroebuck@phillynews.com

215-854-2608@jeremyrroebuck