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Key witness to Bill Cosby: 'I'm not on your side'

USA TODAY logo USA TODAY 2/2/2016 Maria Puente

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Bill Cosby, center, arrives for a court appearance Tuesday, Feb. 2, 2016, in Norristown, Pa. © Clem Murray/The Philadelphia Inquirer via AP, Pool Bill Cosby, center, arrives for a court appearance Tuesday, Feb. 2, 2016, in Norristown, Pa.

NORRISTOWN, Pa — Bill Cosby's first hearing here in the criminal sexual-assault case against him is proving to be a mixed bag so far in helping or hurting his efforts to persuade a judge to dismiss charges.

Former District Attorney Bruce Castor, considered by the Cosby legal team to be a key witness, on the one hand testified that he declined to pursue criminal charges against him years ago because of "credibility" issues with Cosby's accuser in the case, ex-Temple University employee Andrea Constand.

On the other hand, Castor also testified he hopes Cosby fails in his efforts to get the case thrown out.

Castor said there was “insufficient, credible and admissible evidence” in 2005 to show Cosby had committed a crime without a reasonable doubt. Plus, he told the court, Constand didn't behave like a victim of sexual assault.

“The behavior detailed within (police interviews) was inconsistent with a person who had been sexually assaulted," Castor testified. "Her actions, on her own, including going to a lawyer before going to police, had created a credibility issue for her that could never be improved upon.”

Still, he was firm: He supports the prosecution team against Cosby.

“Let’s be clear," Castor said to Cosby's attorney. “I’m not on your team here. I want (prosecutors) to win” at the hearing.

On cross examination, Castor was asked whether he believed what Constand said happened to her more than a decade ago. What he believes and what he can prove are two different things, he replied.

"What I think is that Andrea Constand was inappropriately touched by Mr. Cosby,” Castor said. “I am not analyzing back in 2005 as to what I think. I am analyzing it back in 2005 as to what I can prove."

Therefore, he said, he declined to prosecute Cosby in 2005. He said this decision made it impossible for Cosby to claim his Fifth Amendment right not to testify in the civil case Constand later brought against Cosby. Castor said he thought getting Constand money from Cosby via a civil suit would be “the best he could do.”

Earlier, Cosby, dressed in a dark tan suit and tie and flanked by two men helping him to walk, arrived to the anticipated media mob outside the small courthouse, the only place most of the media can photograph him during the hearing before Montgomery County Judge Steven O'Neill.  Actor and comedian Bill Cosby, center, arrives for a court appearance Tuesday, Feb. 2, 2016, in Norristown, Pa. Cosby was arrested and charged with drugging and sexually assaulting a woman at his home in January 2004. (AP Photo/Mel Evans) © The Associated Press Actor and comedian Bill Cosby, center, arrives for a court appearance Tuesday, Feb. 2, 2016, in Norristown, Pa. Cosby was arrested and charged with drugging and sexually assaulting a woman at his home in January 2004. (AP Photo/Mel Evans)

The scene outside the courthouse resembled in many respects the scene on Dec. 30, when Cosby was charged and arraigned in an even smaller courthouse, in Elkins Park, Pa., on charges of felony indecent sexual assault stemming from an encounter 12 years ago at his nearby home with Constand, who accused him a year later of drugging and raping her.

The Constand case against Cosby dates to 2004. Castor, the then-district attorney of Montgomery County, declined to prosecute Cosby in 2005 for lack of evidence. So Constand sued Cosby in civil court, and Cosby testified for three days in a deposition. The suit was eventually settled on undisclosed terms and sealed in 2006.

Since then, some five-dozen women have accused Cosby of drugging and/or sexually assaulting them in episodes dating back to the 1960s.

Last year, excerpts of Cosby's deposition were released and the new district attorney of Montgomery County, Kevin Steele, decided to file charges just weeks before the state statute of limitations was due to expire.

Steele intends to press his case against Cosby based in part on Cosby's own words in the Constand deposition.

Cosby's legal team will argue that the charges should be dismissed because of a "no-prosecution" deal in 2005, when Castor says he told Cosby's lawyer that if Cosby answered questions in the Constand deposition, Castor would agree not to prosecute Cosby based on the deposition.

Andrea Constand in 2015 © Provided by Associated Press Andrea Constand in 2015 Castor was the first witness called at the hearing by Cosby lawyer Brian McMonagle, to testify about his reasoning in not pursuing criminal charges against Cosby.

Steele has argued against Cosby's motion to dismiss, saying any immunity deal by Castor should have been written down and agreed to by a judge, and since it wasn't, it's irrelevant in this case.

But Castor said he believes his decision on the deal is binding on his successors and forever closes the door on prosecuting Cosby.

"For all time, yes," Castor said when pressed on the point.

Some legal analysts say that if Cosby can demonstrate that he relied on Castor's promise to his detriment — by agreeing to testify in the deposition — then he might be able to persuade the judge to throw out the deposition — or even dismiss the charges altogether.

Maria Puente reported from McLean, Va. Brittany Horn of The New Journal reported from Norristown, Pa.

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