DOJ-OGR-00004823.jpg

Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 11 of 80 were illegal and included discussions that could be interpreted as attempts by Constand and her mother to get Cosby to pay Constand so that she would not contact the authorities. The totality of these circumstances ultimately led D.A. Castor to conclude that “there was insufficient credible and admissible evidence upon which any charge against [] Cosby related to the Constand incident could be proven beyond a reasonable doubt.” N.T., 2/2/2016, at 60. Having determined that a criminal trial likely could not be won, D.A. Castor contemplated an alternative course of action that could place Constand on a path to some form of justice. He decided that a civil lawsuit for money damages was her best option. To aid Constand in that pursuit, “as the sovereign,” the district attorney “decided that [his office] would not prosecute [] Cosby,” believing that his decision ultimately “would then set off the chain of events that [he] thought as a Minister of Justice would gain some justice for Andrea Constand.” /d. at 63-64. By removing the threat of a criminal prosecution, D.A. Castor reasoned, Cosby would no longer be able in a civil lawsuit to invoke his Fifth Amendment privilege against self-incrimination for fear that his statements could later be used against him by the Commonwealth. Mr. Castor would later testify that this was his intent: The Fifth Amendment to the United States Constitution states that a person may not be compelled to give evidence against themselves. So you can't subpoena somebody and make them testify that they did something illegat—or evidence that would lead someone to conclude they did something illegal—on the threat of if you don’t answer, you'll be subject to sanctions because you’re under subpoena. So the way you remove that from a witness is—if you want to, and what | did in this case—is | made the decision as the sovereign that Mr. Cosby would not be prosecuted no matter what. As a matter of law, that then made it so that he could not take the Fifth Amendment ever as a matter of law. So | have heard banter in the courtroom and in the press the term “agreement,” but everybody has used the wrong word. | told [Cosby’s attorney at the time, Walter] Phillips that | had decided that, because of [J-100-2020] - 10 DOJ-OGR-00004823