KELLY MCEVERS, HOST:
Bill Cosby heads to court tomorrow. It's a pretrial hearing in a criminal sexual assault case. Bobby Allyn of member station WHYY reports Cosby's advocates hope the hearing will derail the case and keep the comedian out of prison.
BOBBY ALLYN, BYLINE: The main question of the hearing is, was an old promise broken when prosecutors filed charges? The broken agreement question begins in 2005. That's when then-District Attorney Bruce Castor announced by press release that he wasn't pressing charges against Bill Cosby because there wasn't enough evidence. Jump ahead to December 30. That's when newly elected District Attorney Kevin Steele stood in front of dozens of reporters in a tiny county room outside of Philadelphia.
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KEVIN STEELE: Charges today are filed as a result of new information that came to light in July of 2015.
ALLYN: In July, a judge unsealed parts of a deposition Cosby gave as part of a civil lawsuit. In the deposition, Cosby said he gave Temple University employee Andrea Constand pills, including before sexual contact. He also said he gave Quaaludes to women he slept with in the past. So now the debate is whether it was proper to use Cosby's words from a deposition in a civil matter as the basis for criminal charges. Cosby's attorneys say the old press release announcing that there wouldn't be charges should be binding and that there was a verbal agreement, too. Prosecutors are saying, prove it.
ANNE BOWEN POULIN: The courts look for something quite formal in these cases not just, oh, they promised they weren't going to prosecute me.
ALLYN: Villanova University criminal law professor Anne Bowen Poulin says since the promise isn't in writing, it'll be tough to prove. The entertainer's old attorney died last year, and Cosby's team says a written version of the promise may have been lost.
POULIN: The fact that Cosby can't come up with a copy because his attorney died doesn't explain why there's no written record at all.
ALLYN: It's not easy winning immunity from charges in Pennsylvania. Only prosecutors can ask for it, and a judge has to approve it. And, typically, it's done in exchange for something else. Like, a witness can receive immunity for testifying in a criminal trial. Does it ever happen just by word-of-mouth?
DENNIS MCANDREWS: It's very rare.
ALLYN: Former Philadelphia prosecutor Dennis McAndrews says a verbal agreement of immunity without a judge's approval isn't enforceable.
MCANDREWS: Frankly, defense attorneys and prosecutors would both be very reluctant in a typical circumstance to enter that kind of a nonprosecution agreement.
ALLYN: Still, Cosby's attorneys say the announcement to not press charges in 2005 is, quote, "contractual in nature and should be looked at like any other contract." University of Pennsylvania contract expert Tess Wilkinson-Ryan says technically, all a contract needs is an offer and acceptance. It doesn't have to be more formal than that, but...
TESS WILKINSON-RYAN: A press release is a weird way to do that especially coming from a DAs office.
ALLYN: Former DA Bruce Castor is expected to testify about whether there was an agreement. Poulin says this is the first of many hearings that will postpone the actual trial. It could be part of a defense strategy. Cosby, who is 78, doddered into his initial appearance with a cane.
POULIN: It may be that as he gets older and more frail, he'll make a more appealing defendant and witness in the case. So delay is certainly the friend of the defense in this instance.
ALLYN: Cosby maintains his sexual encounter with Constand was consensual. If he's convicted, though, he could face years in prison. Cosby is free on bail of $1 million. For NPR News, I'm Bobby Allyn in Philadelphia. Transcript provided by NPR, Copyright NPR.
