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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 19 of 80

complete intent to bind the Commonwealth that anything Cosby said in the civil case could not be used against him, thereby forcing him to be deposed and perhaps testify in a civil trial without him having the ability to “take the 5th.” I decided to create the best possible environment for [Constand] to prevail and be compensated. By signing my name as District Attorney and issuing the attached, I was “signing off” on the Commonwealth not being able to use anything Cosby said in the civil case against him in a criminal prosecution, because I was stating the Commonwealth will not bring a case against Cosby for this incident based upon then-available evidence in order to help [Constand] prevail in her civil action. Evidently, that strategy worked.

The attached, which was on letterhead and signed by me as District Attorney, the concept approved by [Constand’s] lawyers was a “written declaration” from the Attorney for the Commonwealth there would be no prosecution based on anything Cosby said in the civil action. Naturally, if a prosecution could be made out without using what Cosby said, or anything derived from what Cosby said, I believed then and continue to believe that a prosecution is not precluded.

Id., Exh. D-7.

Despite her predecessor’s concerns, D.A. Ferman and the investigators pressed forward, reopening the criminal case against Cosby. Members of the prosecutorial team traveled to Canada and met with Constand, asking her to cooperate with their efforts to prosecute Cosby, even though she had specifically agreed not to do so as part of the civil settlement. Investigators also began to identify, locate, and interview other women that had claimed to have been assaulted by Cosby.

Nearly a decade after D.A. Castor’s public decision not to prosecute Cosby, the Commonwealth charged Cosby with three counts of aggravated indecent assault12 stemming from the January 2004 incident with Constand in Cosby’s Cheltenham residence. On January 11, 2016, Cosby filed a petition for a writ of habeas corpus13

12 By this time, Mr. Steele had replaced Judge Ferman as District Attorney. See 18 Pa.C.S. § 3125(a)(1), (a)(4), and (a)(5).
13 Cosby styled the petition as a “Petition for Writ of Habeas Corpus and Motion to Disqualify the Montgomery County District Attorney’s Office.” The trial court treated the omnibus motion as three separate motions: (1) a motion to dismiss the charges based upon the alleged non-prosecution agreement; (2) a motion to dismiss the charges based

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