NORRISTOWN, Pennsylvania (CNN) — Bill Cosby will ask a judge on Tuesday to dismiss a criminal charge alleging that he sexually assaulted a woman in 2004.
The actor’s lawyers argue the court should dismiss the case based on an agreement Cosby says he made a decade ago with the former District Attorney of Montgomery County.
On December 30 Cosby was charged with one count of aggravated indecent assault against Andrea Constand, one of a long line of accusers who was the first to go to authorities, in 2005.
According to the affidavit of probable cause, Constand alleges that in 2004 Cosby drugged and sexually assaulted her in his Pennsylvania home after inviting her there to discuss her professional future.
During the hearing, which could include testimony, Cosby’s attorneys plan to argue to Administrative Judge Steven O’Neill that the district attorney at the time, Bruce Castor, promised Cosby he would never be prosecuted on deposition testimony from a civil case filed by Constand in 2005.
Castor did not file sexual assault charges against Cosby in that same year, citing “insufficient credible and admissible evidence.”
Constand, a former director of operations for Temple University’s women’s basketball team, met Cosby in 2002 when, according to prosecution documents, she believed he sought her out to be a “mentor” and “sincere friend.”
Constand’s civil suit alleged battery, sexual assault and intentional infliction of emotional distress.
It was settled in 2006 with a confidential settlement agreement but not before a judge compelled Cosby to answer questions under oath.
That deposition was sealed for the last decade but parts were unsealed last summer by a federal judge. The Montgomery County District Attorney’s Office, then led by a different prosecutor, reopened the investigation based on “new evidence” from that now public deposition.
That new evidence, according to prosecutors, centers on a question from Constand’s civil attorney Dolores Troiani and Cosby’s response during the sworn testimony:
Q. “When you got the Quaaludes, was it in your mind that you were going to use these Quaaludes for young women that you
wanted to have sex with?”
Cosby later stated in the deposition he was only referring to one unnamed woman.
Defense attorneys admit in court documents the nonprosecution agreement was never put in writing and Cosby’s attorney who allegedly negotiated the deal is now dead.
Newly elected District Attorney Kevin Steele argues that the agreement never existed, saying in legal filings the DA’s office has no documentation on it and they can’t find anyone who does.
According to Cosby’s own 2005 deposition testimony, he admitted sexual contact with Constand, but said it was consensual.
Cosby has yet to have his preliminary hearing and formal arraignment in the case.
It is not known if the judge will announce a decision at conclusion of the hearing.