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Bill Cosby Appears in Court for Hearing on Fate of Sex-Assault Trial

by Tracy Connor and Tom Winter /

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The Pennsylvania prosecutor who chose not to charge Bill Cosby after a sex-assault investigation in 2005 testified at a hearing Tuesday that the accuser had "credibility issues" and was more likely to get "justice" from a lawsuit.

Former Montgomery County District Attorney Bruce Castor said there was no "agreement" with Cosby's lawyers not to prosecute, but insisted he did have the power to decide the legendary comedian would never face criminal charges for an encounter with Andrea Constand.

His testimony could be a blow to Cosby, who was charged last year with sexually assaulting Constand after a string of women around the country came forward with allegations they had been abused by the man best known as wholesome TV dad Cliff Huxtable.

Cosby, who has denied all allegations of criminal wrongdoing, is trying to get the case tossed by arguing that Castor made a legally binding no-prosecution deal with the defense.

Cosby, 78, sat silently in the courtroom as Castor testified that he believed Constand was "inappropriately touched" and hoped that she would become a "millionaire" by suing the actor — but also detailed the hurdles he would have faced in proving a crime had occurred.

"There were a number of inconsistencies that caused me concern," Castor said of the accounts Constand gave to police.

He said the fact that she went to a civil lawyer before reporting the incident to police was a problem, and he was worried that she and her mother had illegally recorded phone conversations with Cosby.

"Credibility issues were irreparable," he said, adding that allegations made by other women across the country could not have bolstered the case because they were decades-old and were not reported to police.

"I decided that there was insufficient credible evidence on which any charge related to Mr. Cosby as alleged by Ms. Constand could be proven beyond a reasonable doubt," Castor said.

"I did not believe it was just to go forward with a criminal prosecution but I wanted there to be some determination of justice," he said.

"I believe Ms. Constand's account of what's occurred," he added later. "I believe Andrea Constand was inappropriately touched by Mr. Cosby."

The former DA said he thought that if he decided not to charge Cosby, that would strip Cosby of the ability to plead the Fifth Amendment in the civil case brought by Constand.

He said that he shared that strategy with Cosby's lawyer, who has since died, but said describing that as an "agreement," as he has done in the past, was wrong.

"I thought at the time and still think that making Mr. Cosby pay money to Ms. Constad would be the best stage I could set," he said.

"Mr. Cosby was not getting prosecuted, at all, ever, as far as I was concerned," he added.

Image: Bill Cosby
Actor and comedian Bill Cosby, center, arrives for a court appearance Tuesday, Feb. 2, 2016, in Norristown, Pa.Mel Evans / AP

In fact, Cosby did go on to testify in the civil case — which was settled for an undisclosed sum — and the deposition he gave has come back to haunt him.

Last year, as other women went public with accusations against Cosby that stretched back decades, the current Montgomery County DA decided to charge the actor with aggravated indecent assault on Constand.

The deposition that Cosby gave — in which he described giving Constand some Benadryl and wine but insisted their contact was consensual — figures heavily in the criminal complaint, which alleges that Constand was incapacitated and unable to give consent.

Castor, who was the DA until 2008 and unsuccessfully ran again for the office last year, said he never requested Cosby's deposition or otherwise followed up on the case after 2005.

"I was hopeful that I had made Ms. Constand a millionaire," he said.

"Other than when some comedian made some joke about Cosby being a sexual abuser or a rapist I never gave the case another thought."

When he heard that his successor as DA might prosecute Cosby in the Constand incident, he emailed her to explain his decision-making years earlier.

"I wanted to make sure that she didn't make a mistake and go ahead and move against Cosby," Castor said.

Cosby would face up to 10 years in prison if convicted of assaulting Constand, a former basketball star who worked at his alma mater, Temple University.

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