Bill Cosby's Fate Could Hinge on a Small-Town Election

The outcome of a county DA race this week could affect what happens with a key sexual assault case against Cosby

The fate of Andrea Constand's sexual assault case against Bill Cosby could hinge on the outcome of the Montgomery County DA race. Credit: Spencer Platt/Getty

In 2005, former Temple University employee Andrea Constand reported to police that Bill Cosby had drugged and sexually assaulted her at his Montgomery County, Pennsylvania, home a year earlier, making her one of the first woman to publicly accuse Cosby of sexual assault.

After interviewing Cosby and reviewing statements from "other persons claiming that Mr. Cosby behaved inappropriately with them on prior occasions," then Montgomery County District Attorney Bruce L. Castor, Jr. declined to file charges against Cosby related to the alleged incident.

His decision not to file charges came up again last year after a video clip of comedian Hannibal Buress calling Cosby a rapist went viral, setting the stage for dozens more women to come forward with allegations of sexual misconduct against Cosby – many of them with stories similar to Constand's.

Castor left the DA's office in 2008; now, the Montgomery County DA is Risa Vetri Ferman. According to court documents filed by Constand's attorneys, Ferman quietly re-opened the criminal investigation into Cosby related to Constand's allegations at some point this year. The statute of limitations in the case will expire in January.

Ferman has not confirmed or denied re-opening the case, though in a recent statement she said, "I believe prosecutors have a responsibility to review past conclusions, whether their own or a predecessor's, when current information might lead to a different decision." The Philadelphia Inquirer recently reported that prosecutors could be weeks away from charging Cosby in the case. (Ferman did not respond to Rolling Stone's requests for comment.)

How that prosecution plays out could depend in part on the outcome of an obscure county election in suburban Philadelphia.

Ferman is leaving office to run for a county court judgeship, which leaves her DA seat up for grabs in Tuesday's election. If the case is in fact open, as asserted by Constand's attorney and the local press, the winner of that race will inherit the Cosby investigation.

One candidate is the county's current first assistant district attorney, Democrat Kevin Steele. His Republican opponent is Montgomery County Commissioner Bruce Castor – the same Bruce Castor who, as county DA back in 2005, decided not to file charges against Cosby.

According to local reports from a decade ago, "Just hours after detectives interviewed Cosby, Castor portrayed the case as weak and said the victim's delay in reporting the offense hurt the case." He also said at the time, "In Pennsylvania, we charge people for criminal conduct. We don't charge people for making a mistake or doing something foolish."

Castor didn't hold a press conference to announce his decision to not file charges against Cosby; instead, he issued a late-afternoon press release, which read in part, "[T]he District Attorney finds insufficient, credible, and admissible evidence exists upon which any charge against Mr. Cosby could be sustained beyond a reasonable doubt." It also said that "persons on both sides of the issue" could be portrayed in "a less than flattering light," and encouraged the parties to resolve their dispute "with a minimum of rhetoric."

Constand's lawyer, Dolores Troiani, has said she learned about Castor's decision through the press. In response, she publicly criticized both Castor and the investigation.

"I think the fact that [Constand] wasn't notified in advance speaks volumes about the manner in which the investigation was conducted by Mr. Castor," she said. "This is inexplicable conduct." Castor claimed he faxed Troiani a copy of the press release.

Locked out of the courtroom, Constand pursued a civil complaint, asserting claims of battery and sexual assault, among others. Thirteen women now known as "the Jane Does" agreed to testify about their own experiences with Cosby, who was deposed by Troiani. The civil case was settled in 2006, and the deposition was unsealed this summer.

Prosecutors are generally afforded great discretion about whether to file charges in a particular case, and are usually not expected to explain their reasoning. But in the Constand case, Castor has been asked to explain his decision repeatedly over the past year or so, especially since the case became a heated issue in the Montgomery County DA election.

"I wanted to arrest Bill Cosby because I thought he was probably guilty," Castor said last year, "but being able to prove anything beyond a reasonable doubt and thinking he's probably guilty are two different things."

The DA race Castor is running in against Kevin Steele is expected to be close, and it has turned nasty: Steele recently aired a commercial attacking Castor for "not looking out for" Cosby's alleged victims. In response, Castor released an ad accusing Steele – who's been first assistant district attorney in the county since 2008 – of not pursuing charges either.

Last week, Constand's attorneys filed a defamation suit against Castor in U.S. District Court for the Eastern District of Pennsylvania accusing him of "[choosing] to make [Constand] collateral damage for his political ambitions."

The lawsuit accuses Castor of making multiple statements intended to convey that Constand "had been inconsistent in her accusations against Cosby, exaggerated her claims in a lawsuit and therefore was not to be believed."

Castor has dismissed the defamation suit as "political chicanery" and has attributed it to his political opponent, calling it "the cheapest of Steele's cheap campaign stunts." Steele denies he orchestrated the defamation suit. "Attorney Troiani is representing the interests of her client, which are unrelated to my campaign," Steele tells Rolling Stone.

Last Wednesday, two days after the defamation suit was filed, Castor canceled an appearance at a debate against Steele. The following day, a message was posted on his Twitter account that read, "Castor did not immediately return a call seeking comment. He said he had gotten quaaludes...to give to young women before sex years earlier."

Castor did not return requests from Rolling Stone for comment.

Meanwhile, Troiani has said that if Castor wins the election next week, Constand "will likely back out" of the case. "How can we possibly trust him?" the lawyer told The Inquirer.

If Constand was to drop her case, it's unclear what would happen. Speaking in general and not about this specific case, Jennifer Gentile Long, a former Philadelphia prosecutor and co-founder of a group dedicated to improving the quality of justice in sexual assault cases, tells Rolling Stone it's possible to prosecute a sexual assault case without a cooperating accuser, but it would be "extremely challenging."

"It's not that the victim drives the decision, because the prosecutor represents the government and must consider his or her obligation to seek justice and protect the community," says Long. "It's the state's case against the perpetrator. But the prosecutor would want to consider the victim, and why they were not participating, and what would the impact be on the victim before proceeding on a case like that."

Bill Cosby has repeatedly denied wrongdoing regarding public allegations of sexual misconduct, and has not been charged with a crime. Requests for comment to his attorney were not returned.