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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 18 of 80

believe any state judge would allow that deposition into evidence, nor
anything derived therefrom. In fact, that was the specific intent of all parties
involved including the Commonwealth and the plaintiff’s lawyers. Knowing
this, unless you can make out a case without that deposition and without
anything the deposition led you to, I think Cosby would have an action
against the County and maybe even against you personally. That is why I
have publically suggested looking for lies in the deposition as an alternative
now that we have learned of all these other victims we did not know about
at the time we had made the go, no-go decision on arresting Cosby. I
publically suggested that the DA in California might try a common plan
scheme or design case using [Constand’s] case as part of the res gestae in
their case. Because I knew Montgomery County could not prosecute Cosby
for a sexual offense, if the deposition was needed to do so. But I thought
the DA in California might have a shot because I would not have the power
to bind another state’s prosecutor.

Some of this, of course, is my opinion and using Cosby’s deposition in the
CA case, might be a stretch, but one thing is fact: the Commonwealth,
defense, and civil plaintiff’s lawyers were all in the agreement that the
attached decision from me stripped Cosby of this Fifth Amendment privilege
against self-incrimination, forcing him to be deposed. That led to Cosby
paying [Constand] a lot of money, a large percentage of which went to her
lawyers on a contingent fee basis. In my opinion, those facts will render
Cosby’s deposition inadmissible in any prosecution in Montgomery County
for the incident that occurred in January 2004 in Cheltenham Township.

Bruce

N.T., 2/2/2016, Exh. D-5.

Replying by letter, D.A. Ferman asserted that, despite the public press release,
this was the first she had learned about a binding understanding between the
Commonwealth and Cosby. She requested a copy of any written agreement not to
prosecute Cosby. D.A. Castor replied with the following email:

The attached Press Release is the written determination that we would not
prosecute Cosby. That was what the lawyers for [Constand] wanted and I
agreed. The reason I agreed and the plaintiff’s lawyers wanted it in writing
is so that Cosby could not take the 5th Amendment to avoid being deposed
or testifying. A sound strategy to employ. That meant to all involved,
including Cosby’s lawyer at the time, Mr. Phillips, that what Cosby said in
the civil litigation could not be used against him in a criminal prosecution for
the event we had him under investigation for in early 2005. I signed the
press release for precisely this reason, at the request of [Constand’s]
counsel, and with the acquiescence of Cosby’s counsel, with full and

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