DOJ-OGR-00004838.jpg

Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 26 of 80

receive any information in discovery or from [Cosby’s] attorneys indicating
that [Cosby] could never be prosecuted.

Ms. Troiani testified that she understood the press release to say that Mr.
Castor was not prosecuting at that time but if additional information arose,
he would change his mind. She did not take the language, “District Attorney
Castor cautions all parties to this matter that he will reconsider this decision
should the need arise,” to be a threat not to speak publicly. She continued
to speak to the press; Mr. Castor did not retaliate.

Ms. Troiani was present for [Cosby’s] depositions. At no point during the
depositions was there any mention of an agreement or promise not to
prosecute. In her experience, such a promise would have been put on the
record at the civil depositions. She testified that during the four days of
depositions, [Cosby] was not cooperative and the depositions were
extremely contentious. Ms. Troiani had to file motions to compel [Cosby’s]
answers. [Cosby’s] refusal to answer questions related to Ms. Constand’s
allegations formed the basis of a motion to compel. When Ms. Troiani
attempted to question [Cosby] about the allegations, [Cosby’s] attorneys
sought to have his statement to police read into the record in lieu of cross
examination.

Ms. Troiani testified that one of the initial provisions [Cosby] wanted in the
civil settlement was a release from criminal liability. [Cosby’s civil attorney
Patrick] O’Conner’s letter to Ms. Ferman does not dispute this fact. [Cosby]
and his attorneys also requested that Ms. Troiani agree to destroy her file,
she refused. Eventually, the parties agreed on the language that Ms.
Constand would not initiate any criminal complaint. The first Ms. Troiani
heard of a promise not to prosecute was in 2015. The first Ms. Kivitz learned
of the purported promise was in a 2014 newspaper article.

John P. Schmitt, Esq., testified that he has represented [Cosby] since 1983.
In the early 1990s, he became [Cosby’s] general counsel. In 2005, when
he became aware of the instant allegations, he retained criminal counsel,
William Phillips, Esq., on [Cosby’s] behalf. Mr. Phillips dealt directly with
the prosecutor’s office and would then discuss all matters with Mr. Schmitt.
[Cosby’s] January 2005 interview took place at Mr. Schmitt’s office. Both
Mr. Schmitt and Mr. Phillips were present for the interview. Numerous
questions were asked the answers to which could lead to criminal charges.
At no time during his statement to police did [Cosby] invoke the Fifth
Amendment or refuse to answer questions. Mr. Schmitt testified that he had
interviewed [Cosby] prior to his statement and was not concerned about his
answers. Within weeks of the interview, the District Attorney declined to
bring a prosecution. Mr. Schmitt testified that Mr. Phillips told him that the
decision was an irrevocable commitment that District Attorney Castor was
not going to prosecute [Cosby]. He received a copy of the press release.

[J-100-2020] - 25

DOJ-OGR-00004838