________________________________________________________________________
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA

:
MISC. NO:
:
:
vs.
:
:
WILLIAM H. COSBY JR.
:
______________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS AND MOTION TO DISQUALIFY THE
MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE
Defendant William H. Cosby Jr., by and through his attorneys, brings this Petition for
Writ of Habeas Corpus, pursuant to 42 Pa.C.S.A. Sections 6501 et seq., and Pa.R.Crim.P. 108,
and Motion to Disqualify the Montgomery County District Attorney’s Office, and respectfully
requests this Honorable Court to grant an Order dismissing all charges against him after an
evidentiary hearing to consider the matters raised herein, or in the alternative an Order
disqualifying the Montgomery County District Attorney’s Office, and in support thereof states
the following.
On December 30, 2015, the District Attorney of Montgomery County charged Mr. Cosby
with aggravated indecent assault. The charges violate an express agreement made by the
Montgomery County District Attorney in 2005, in which the Commonwealth agreed that Mr.
Cosby would never be prosecuted with respect to the allegations of sexual assault made by
complainant Andrea Constand. This agreement was made for the express purpose of inducing
Mr. Cosby to testify fully in Ms. Constand’s civil litigation against him. In reliance on that
agreement, Mr. Cosby testified in 2005 and again in 2006 without invocation of his
Constitutional rights against self-incrimination. Now, to fulfill campaign promises, the newlyelected District Attorney has repudiated the agreement and has based these criminal charges on

06779-00004/7569119.1

 the very testimony Mr. Cosby gave in reliance on the Commonwealth’s non-prosecution
agreement.
The charges should separately be dismissed on due process grounds because the over tenyear delay in bringing these charges was inexcusable and has greatly prejudiced Mr. Cosby, as
set forth below.
Finally, if dismissal is not granted, the Court should at a minimum disqualify the District
Attorney Kevin Steele and the Montgomery County District Attorney’s Office from any further
involvement in this prosecution due to the Office’s and Mr. Steele’s intentional breach of the
Commonwealth’s non-prosecution agreement, and due to repeated violations of ethical rules—
including Mr. Steele’s deliberate injection of the allegations against Mr. Cosby into a political
campaign through repeated public statements made while serving as First Assistant District
Attorney and while directly involved in his office’s investigation of the allegations—that served
no purpose other than to advance Mr. Steele’s political ambitions by inflaming the public against
Mr. Cosby.
WHEREFORE, the Defendant respectfully requests that this Honorable Court grant this
Petition for Writ of Habeas Corpus in this matter after an evidentiary hearing or in the alternative
an Order disqualifying the Montgomery County District Attorney’s Office.
January 10, 2016

Respectfully submitted,

_______________________________
Brian J. McMonagle
MCMONAGLE, PERRI, MCHUGH, &
MISCHAK P.C.
1845 Walnut Street, 19th Floor
Philadelphia, PA 19103
(215) 981-0999; Fax 215-981-0977
Christopher Tayback
Joseph Sarles
(pro hac vice admission pending)
2

 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
(213) 443-3000; Fax (213) 443-3100
Email: christayback@quinnemanuel.com
josephsarles@quinnemanuel.com
Monique Pressley
(pro hac vice admission pending)
THE PRESSLEY FIRM, PLLC
1629 K Street NW, Suite 300
Washington, DC 20036
(202) 973-0181; Fax (240)235-3388
Email: mdpressley@thepressleyfirm.com
Attorneys for Defendant

3

 ________________________________________________________________________
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA

:
MISC. NO:
:
:
vs.
:
:
WILLIAM H. COSBY JR.
:
______________________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF HABEAS
CORPUS AND MOTION TO DISQUALIFY

I.

INTRODUCTION
We strongly condemn the conduct of the state’s attorney in this case. The
awesome power to prosecute ought never to be manipulated for personal
or political profit.1

On December 30, 2015, the District Attorney for Montgomery County wrongfully
charged defendant William H. Cosby Jr. in direct violation of an express non-prosecution
agreement. The Commonwealth made that agreement with Mr. Cosby over ten years ago, when
the District Attorney first investigated the allegations and concluded they could not support any
charges. The First Assistant District Attorney’s use of Mr. Cosby as a political tool in his recent
election campaign for District Attorney was wildly improper standing alone. But his office is
now abusing the judicial process itself, knowingly repudiating a binding non-prosecution
agreement and trampling Mr. Cosby’s due process rights for political gain. Immediate habeas
relief is necessary to enforce the Commonwealth’s agreement with Mr. Cosby. The charges

1

State v. Hohman, 420 A.2d 852, 855 (Vt. 1980) (disqualifying prosecutor for campaign
ad pledging to prosecute defendant, and referring matter to Professional Conduct Board),
overruled on other grounds by Jones v. Shea, 532 A.2d 571, 572 (1987).
4

 should be dismissed, or at a minimum, the Montgomery County District Attorney’s office should
be disqualified from any further participation in this prosecution.
There can be no question the Commonwealth entered into a non-prosecution agreement
with Mr. Cosby. The Commonwealth, through then-District Attorney Bruce Castor, promised in
2005 that Mr. Cosby would not be charged in connection with these allegations, in exchange for
Mr. Cosby giving testimony in the complainant’s civil case against him. The express intent of
the agreement was to induce Mr. Cosby not to assert his Constitutional rights under the Fifth
Amendment, and Mr. Castor reminded the District Attorney’s office about that agreement in
2015, before these charges were brought. Nonetheless, the District Attorney proceeded and not
only breached the agreement, but in the probable cause affidavit is using the very testimony Mr.
Cosby provided in reliance on that agreement against him as a basis for the charges. A citizen’s
Constitutional rights cannot be thwarted by politically motivated prosecutors willing to break
agreements made by their predecessors. The Commonwealth’s agreement must be enforced, and
the charges dismissed.
Even if the Commonwealth had not agreed these charges would not be brought, its
inexcusable and prejudicial delays in doing so separately warrant dismissal. Due process
prohibits unreasonable delays in making arrests, even if the charges are made at the eleventh
hour, arguably before the statute of limitations expires. In the ten years since these allegations
were first investigated, Mr. Cosby’s attorney—who negotiated the non-prosecution agreement
with the District Attorney and could give critical testimony requiring dismissal of the charges—
has died; his testimony is lost forever. In addition, Mr. Cosby has lost his eyesight—and with it
his ability to identify the physical appearance of witnesses and accusers as well as review other
pieces of physical evidence—and his age and the passage of time have substantially impaired his
memories of the relevant events and witnesses. In addition to the death of a key witness to the

5

 non-prosecution agreement, other material third-party witnesses are now a decade removed from
the events at issue and may no longer be available.
The real reason for the delay and resulting prejudice to Mr. Cosby was of course the nonprosecution agreement, which the District Attorney’s office kept until politics and public opinion
made it expedient to disregard it. But even setting aside the non-prosecution agreement, there
was no legitimate reason for a ten-year delay. In announcing these charges to the press, First
Assistant District Attorney Kevin Steele claimed they were the result of “new information,”
including allegations made by third parties, but—by Mr. Steele’s own admission—that is false.
On the contrary, just weeks before arresting Mr. Cosby, Mr. Steele claimed during his political
campaign that all relevant evidence was available and evaluated in 2005, running a TV
commercial claiming that the office “could have used” third party allegations against Mr. Cosby
years earlier “but didn’t even try.” Declaration of Brian McMonagle (“McMonagle Decl.”), Ex.
D. The probable cause affidavit supporting the charges confirms this, claiming Mr. Cosby’s civil
deposition led prosecutors to “believe it is likely he gave the drugs to other persons.” Id., Ex. G
at 17. But that is not new information at all; allegations by other persons were investigated in
2005 when the District Attorney declined to prosecute. Indeed, for support the probable cause
affidavit quotes a 2005 deposition that the District Attorney was fully aware had taken place, but
never sought to subpoena. The District Attorney’s inaction for over a decade, with full
knowledge of the civil case and deposition, further evidences the existence of a non-prosecution
agreement. Nothing—other than the non-prosecution agreement—prevented the District
Attorney from evaluating Mr. Cosby’s 2005 deposition or any of the other evidence on which the
charges are now based.
The District Attorney’s office’s unethical, self-promoting breach of its agreement with
Mr. Cosby coupled with the denial of due process through the completely avoidable decade-long

6

 delay necessitates dismissal of all charges. However, even if the charges are not dismissed on
the above grounds at this stage, the Court should at a minimum disqualify the Montgomery
County District Attorney’s office from further participation in this prosecution. Under
Pennsylvania law, prosecutors are forbidden “from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused” except for statements
“necessary to inform the public of the nature and extent of the prosecutor’s action and that serve
a legitimate law enforcement purpose.” Pa. R. Prof’l Conduct 3.8(e). Violating and ignoring
these ethical obligations, the First Assistant District Attorney, Kevin Steele, made Mr. Cosby a
centerpiece of his campaign for District Attorney, producing television commercials and
promotional materials portraying Mr. Cosby as a “sexual predator” and criticizing his political
opponent for failing to prosecute, all in an effort to seize upon and increase public condemnation
of Mr. Cosby and urge voters not to elect the District Attorney who had agreed not to prosecute
Mr. Cosby. McMonagle Decl, Ex. D. Mr. Steele’s improper and unethical campaign tactic was
successful—his commercial and disparaging accusations against Mr. Cosby and the former
District Attorney garnered extensive national media coverage and significantly increased public
animosity toward Mr. Cosby.
Far from “exercis[ing] reasonable care to prevent [Mr. Steele] from making an
extrajudicial statement that the prosecutor would be prohibited from making,” as required by
law, the Montgomery County District Attorney’s office did nothing to correct or retract Mr.
Steele’s inflammatory and prejudicial campaign statements. Instead, the office tacitly endorsed
Mr. Steele’s repeated public statements designed to inflame the public against Mr. Cosby,
implying that it agreed and confirming that it was re-investigating the matter, in violation of the
non-prosecution agreement.

7

 Justice requires that the Court dismiss the charges at this stage. But even if not yet
persuaded to dismiss, there will be no justice at all unless the Court removes Mr. Steele and the
Montgomery County District Attorney’s office from the prosecution immediately, prior to the
preliminary hearing.
II.

ALLEGATIONS OF FACT
This petition “specifically allege[s] facts, which if true would entitle the defendant to an

award of writ of habeas corpus.” Com. v. Lawson, 650 A.2d 876, 879 (1994). The court accepts
the allegations as true to determine whether an evidentiary hearing is warranted. If the petition is
dismissed without a hearing, the appellate court will review the lower court’s order
to determine “if the allegations of the petition are such that a hearing should have been held to
allow the petitioner to support his allegations by evidence . . . .” Balsamo v. Mazurkiewicz, 417
Pa. Super. 36, 41, 611 A.2d 1250, 1253 (1992).
A.

The Commonwealth’s 2005 Agreement of Non-Prosecution with Mr. Cosby

Almost eleven years ago, on February 17, 2005, Montgomery County District Attorney
Bruce Castor announced he was declining to file charges in connection with allegations by
Andrea Constand that Defendant had “touched her inappropriately” in January of 2004, an
allegation she first reported on January 13, 2005. See Press Release, Feb. 17, 2005, Declaration
of Brian McMonagle (“McMonagle Decl.”), Ex. A. District Attorney Castor noted his
consideration of all relevant evidence—including “statements from other persons” who had
made similar allegations against Defendant—and concluded that while “a conviction under the
circumstances of this case would be unattainable,” a civil action by Ms. Constand “is possible.”
Id.
In advance of issuing this press release, District Attorney Castor reached an agreement
with counsel for Mr. Cosby. The District Attorney intentionally and specifically bound the

8

 Commonwealth that there would be no state prosecution of Mr. Cosby in order to remove from
him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing
him to sit for a deposition under oath in a civil case. Although Mr. Cosby’s then-counsel is since
deceased, then-District Attorney Bruce Castor has confirmed he entered into this agreement on
behalf of the Commonwealth. Mr. Cosby is prepared to offer Mr. Castor’s testimony at an
evidentiary hearing on this petition. Mr. Castor will also confirm that it was the specific intent of
all parties involved, including the Commonwealth and Mr. Cosby’s counsel, that Mr. Cosby’s
testimony in the civil case—and any other evidence derived from it—would not be used in any
criminal prosecution against him by the Commonwealth. The District Attorney intended to, and
did, bind the Commonwealth to this agreement of non-prosecution.
Three weeks after this agreement and press release, Ms. Constand filed a civil suit against
Mr. Cosby, based on the same allegations. See Constand Complaint, McMonagle Decl., Ex. B.
Relying on the Commonwealth’s promise not to prosecute him, Mr. Cosby testified fully in Ms.
Constand’s civil case, without invocation of his Constitutional right against self-incrimination.
B.

The First Assistant District Attorney Repudiates the Commonwealth’s
Agreement and Publicly Condemns Mr. Cosby for Political Gain

In his 2005 press release, the District Attorney expressly stated he would not “expound
publicly” on the investigation “for fear that his opinions and analysis might be given undue
weight by jurors in any contemplated civil action.” McMonagle Decl., Ex. A at 2. For years,
this appropriate restriction on prosecutors’ public discussion of the matter remained in place.
That changed in 2015, during the regular election for Montgomery County District Attorney.
Trailing in the polls, on October 21, 2015—less than two weeks before election day—First
Assistant District Attorney Kevin Steele launched what he called “a crucial new phase of his
campaign,” consisting of TV ads, public statements, and flyers lambasting “his opponent’s

9

 failure to prosecute Bill Cosby.” McMonagle Decl., Ex. C at 4; see also id., Exs. D & E.2 In
these public statements, Mr. Steele accused Mr. Cosby of being a “sexual predator,” and
asserting the office “didn’t even try” to use the testimony of third party witnesses. Id., Ex. D.
Mr. Steele’s statements made no mention of the Commonwealth’s non-prosecution agreement,
and instead suggested he would prosecute Cosby if elected as District Attorney. Id.
Although Pennsylvania ethical rules clearly prohibit such public statements by
prosecutors, the Montgomery County District Attorney’s Office did nothing to stop Mr. Steele’s
improper use of Mr. Cosby as a tool for political gain. On the contrary, the office tacitly
endorsed Mr. Steele’s inflammatory accusations, stating in response to media inquiries that old
decisions of non-prosecution are being re-evaluated, again making no mention of the
Commonwealth’s non-prosecution agreement with Mr. Cosby. Id., Ex. F at 4.
On the heels of his widely publicized accusations against Mr. Cosby, Mr. Steele narrowly
won election as District Attorney.
C.

The Prejudice Caused by the Commonwealth’s Breach of Its Agreement and
Inexcusable Delay

In the nearly 11 years since Mr. Castor closed the investigation of these events and
promised not to prosecute, key evidence has been forever lost. Mr. Cosby’s attorney who
negotiated the non-prosecution agreement is now deceased; his testimony and contemporaneous
documents are lost forever and Mr. Cosby will be forced to prove the existence of this agreement
without this critical, potentially dispositive evidence. Notably, the Montgomery County District

As of January 10, 2016, Mr. Steele’s TV commercial is available at
https://www.youtube.com/watch?v=upjxu5hlBQg.
2

10

 Attorney’s Office appears to have re-opened its investigation shortly after the February 7, 2015
death of Mr. Cosby’s attorney, a well-known former federal prosecutor and defense attorney.3
Loss of this evidence alone would be sufficient, but Mr. Cosby has suffered many other
prejudices due to delay as well. Mr. Cosby has lost his eyesight, hampering his ability to identify
the physical appearance of witnesses, to view documents, photographs and videos, and thus is
limited and in many instances incapable of working with attorneys in preparation of his own
defense as well as hindered in his ability to confront evidence offered against him by the District
Attorney’s Office. Moreover, Mr. Cosby’s advancing age and the passage of time have
substantially impacted his ability to recall key events and witnesses. In addition, other material
witnesses are now twelve years removed from the events at issue. The delays have seriously
prejudiced Mr. Cosby’s defense against the charges.
III.

ARGUMENT
A.

Legal Standard

“[A]n application for habeas corpus to inquire into the cause of detention may be brought
by or on behalf of any person restrained of his liberty within this Commonwealth under any
pretense whatsoever.” 42 Pa.C.S.A. § 6503(a); see also 42 Pa.C.S.A. § 6502(a) (“Any judge of a
court of record may issue the writ of habeas corpus to inquire into the cause of detention of any
person or any other lawful purpose.”). This includes, as here, a pre-trial petition in advance of a
preliminary hearing. See, e.g., Com. ex rel. Levine v. Fair, 394 Pa. 262, 146 A.2d 834 (1958)
(finding habeas corpus petition filed in advance of preliminary hearing was proper and stating
“[i]t is true . . . that the usual criminal procedure, after an arrest has been effected, is for the court
not to interfere until the arresting magistrate has conducted a preliminary hearing to determine if

Mr. Cosby’s former attorney’s death received considerable local media coverage including:
http://articles.philly.com/2015-02-10/news/58972422_1_prosecutor-marimow-clark-jr. See
McMonagle Decl., Ex. H.
3

11

 a prima facie case has been produced against the defendant. This is indeed the normal practice
as it is the normal routine for one to leave his home through the door, but it can happen, as in the
case of fire, when the householder may find it wiser and more expedient to depart via the
window”). That Mr. Cosby has been released on bond does not preclude him from seeking
habeas relief. See Commonwealth v. Hess, 489 Pa. 580, 587, 414 A.2d 1043, 1046-47 (1980)
(“The restraints on an accused bound over for court and released on bail are sufficient to satisfy
the custody requirement of a habeas corpus petition.”).
In response to a habeas petition, the Commonwealth has the burden of establishing a
prima facie case, offering some proof to establish each material element of the offense as
charged. Commonwealth v. Owen, 397 Pa. Super. 507, 512, 580 A.2d 412, 415 (1990)
(affirming grant of pre-trial habeas petition). Evidence sufficient “to justify a trial judge
submitting the case to the jury at the trial of the case, is required.” Id. at 414 (quoting
Commonwealth v. Snyder, 335 Pa. Super. 19, 23-24, 483 A.2d 933, 935 (1984)). A pre-trial
petition for a writ of habeas corpus thus is similar in purpose to a preliminary hearing, the
primary purpose of which “is to protect an individual’s right against unlawful arrest and
detention.” Id. (quoting Commonwealth v. Morman, 373 Pa. Super. 360, 365, 541 A.2d 356, 359
(1988)).
The decision to dismiss charges “is within the sound discretion of the trial judge and will
be reversed on appeal only where there has been a clear abuse of discretion.” Commonwealth v.
Niemetz, 282 Pa. Super. 431, 439, 422 A.2d 1369, 1373 (1980). An abuse of discretion has been
defined as not merely an error of judgment, but if in reaching a conclusion the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality,
prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused.

12

 Commonwealth v. Kocher, 529 Pa. 303, 306, 602 A.2d 1308, 1310 (1992) (quoting
Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982)).
B.

The Charges Against Mr. Cosby Must Be Dismissed Because They Violate
The Commonwealth’s Express Agreement of Non-Prosecution

Like plea agreements, non-prosecution agreements are enforceable, binding against the
Commonwealth, and must be strictly enforced, “[b]ecause the integrity of the judicial system
demands that the Commonwealth live up to its obligation.” Commonwealth v. Ginn, 402 Pa.
Super. 405, 410, 587 A.2d 314, 316-17 (1991) (affirming trial court’s dismissal of charges based
on enforcement of promise made by district attorney). Although it arises in a criminal context,
the agreement between the prosecutor and the accused is “contractual in nature and is to be
analyzed under contract law standards.” Commonwealth v. Hainesworth, 82 A.3d 444, 449
(2013) (quoting Commonwealth v. Kroh, 440 Pa. Super. 1, 9, 654 A.2d 1168, 1172 (1995)
(affirming specific enforcement of plea agreement)). Ambiguities in such agreements “will be
construed against the [Commonwealth].” Id. (quoting Kroh, 654 A.2d at 1172).
While perhaps helpful for election season, the current district attorney’s repudiation of
his predecessor’s non-prosecution agreement is immaterial in court—“What one assistant district
attorney has agreed to binds another assistant district attorney.” Commonwealth v. Burton, 54
Pa. D. & C.2d 264, 270-71 (1971). Indeed, the Third Circuit has granted federal habeas relief
where Pennsylvania prosecutors have attempted to renege on oral agreements with defendants.
See Dunn v. Colleran, 247 F.3d 450, 461 (3d Cir. 2001) (recognizing that such agreements must
be enforced because “a defendant voluntarily and knowingly surrenders a plethora of
constitutional rights in exchange for a commitment by the prosecutor to do or not do certain
things” and “[w]hen the prosecutor breaches that agreement, he or she violates the defendant’s
due process rights”).

13

 There is no question such an agreement was reached here. Although Mr. Cosby’s lawyer
who negotiated the agreement is deceased, the District Attorney who entered into the agreement
on the Commonwealth’s behalf has confirmed the terms of the agreement and the parties’
meeting of the minds. As discussed above, Mr. Cosby intends to present his testimony at an
evidentiary hearing on this motion, which will establish the essential terms of the agreement.
There is also no question the current prosecutors are fully aware of this agreement, but are
simply choosing to ignore it. Both the current District Attorney and the District Attorney-elect
were in the office in 2005 when the agreement was reached, and Mr. Castor reminded the office
of the agreement in 2015 after Mr. Steele began making public statements suggesting Mr. Cosby
could still be prosecuted.
Nothing further is required to establish the terms of the agreement, and the remedy of
specific performance in the form of dismissal is appropriate. See Ginn, 587 A.2d at 316-17
(affirming trial court’s dismissal of charges based on enforcement of promise made by district
attorney).4
C.

The Charges Against Mr. Cosby Must Be Dismissed Because The
Commonwealth’s Unreasonable Delay Violates Due Process

Regardless of whether charges are brought within the applicable statute of limitations,
unreasonable delay in bringing charges against a defendant violates due process rights
guaranteed under both the Pennsylvania Constitution and the Fourteenth Amendment of the

4

Even where a non-prosecution agreement is unenforceable—here it is clearly enforceable
because it was entered into by the District Attorney—the Supreme Court has ruled any evidence
flowing from defendant’s reliance on such an agreement must be suppressed. Commonwealth v.
Stipetich, 539 Pa. 428, 431-32, 652 A.2d 1294, 1296 (1995) (ordering suppression of evidence to
put the defendants “in the same position as if the unauthorized promise not to prosecute had
never been made by the police”); see also People v. Gallego, 430 Mich. 443, 458, 424 N.W.2d
470, 476 (1988) (where police entered an unauthorized agreement not to prosecute, appropriate
remedy was suppression of evidence obtained thereby).
14

 United States Constitution. Snyder, 713 A.2d at 605. These rights “protect[] defendants from
having to defend stale charges, and criminal charges should be dismissed if improper pre-arrest
delay causes prejudice to the defendant’s right to a fair trial.” Id. at 599-600. The Supreme
Court of Pennsylvania adopted a two-prong test to evaluate a claim of undue delay: if (1) there is
actual prejudice to the defendant, and (2) no proper reason for postponing the defendant’s arrest,
then “the due process clauses of the Constitutions of the United States and Pennsylvania require
that the charges be dismissed.” Id. at 605. Here, both prongs are clearly met.
First, Mr. Cosby has suffered substantial actual prejudice due to the Commonwealth’s
delay. His lawyer who negotiated the non-prosecution agreement is since deceased.
McMonagle Decl. ¶ 2. That attorney—Mr. Walter M. Phillips Jr.—negotiated the nonprosecution agreement prohibiting this very prosecution. His testimony is lost forever and Mr.
Cosby will be forced to prove the existence of this agreement without this critical, potentially
dispositive evidence. Loss of this evidence alone would be sufficient to meet the prejudice
requirement, but Mr. Cosby has suffered many other prejudices to due delay as well. Mr. Cosby
has lost his eyesight, substantially hampering his ability to identify the physical appearance of
witnesses or to view documents and work with attorneys. Moreover, Mr. Cosby’s advancing age
and the passage of time have substantially impacted his ability to recall key events and witnesses.
Memories have faded by twelve years and, coupled with his loss of sight, impede his defense
against accusations by accusers who claim to have met him previously but whom he cannot now
recognize or identify. Moreover, many of the relevant witnesses may now be unavailable.
Second, there is plainly no legitimate reason for the Commonwealth’s delay. During his
election campaign, Mr. Steele argued repeatedly that there was no reason at all for the
Commonwealth’s choice not to charge Mr. Cosby in 2005, claiming in a TV commercial that all
material evidence was equally available when then-District Attorney Bruce Castor chose not to

15

 bring charges in 2005. See McMonagle Decl., Ex. D. Where prejudice exists and a reasonable
basis for the Commonwealth’s 11-year delay does not exist, the charges must be dismissed. See,
e.g., United States v. Morrison, 518 F. Supp. 917, 918 (S.D.N.Y. 1981) (dismissing based on
delay of six months); United States v. Sabath, 990 F. Supp. 1007, 1008 (N.D. Ill. 1998) (four
year delay); United States v. Santiago, 987 F. Supp. 2d 465, 484 (S.D.N.Y. 2013) (five years);
State v. Whitlow, 326 P.3d 607, 612 (Or. Ct. App. 2014) (less than five years); United States v.
Barket, 530 F.2d 189, 193 (8th Cir. 1976) (less than four years); United States v. Sample, 565 F.
Supp. 1166, 1185-86 (E.D. Va. 1983) (less than six years); United States v. Alderman, 423 F.
Supp. 847, 855 (D. Md. 1976) (less than three years).
D.

Alternatively, The Montgomery County District Attorney’s Office and Mr.
Steele Should Be Disqualified

Kevin Steele’s misconduct during his election campaign—and the complicity of the
Montgomery County District Attorney’s office—require disqualification of the entire office,
including Mr. Steele. A “prosecution is barred when an actual conflict of interest affecting the
prosecutor exists in the case; under such circumstances a defendant need not prove actual
prejudice in order to require that the conflict be removed.” Commonwealth v. Eskridge, 529 Pa.
387, 392, 604 A.2d 700, 702 (1992). A prosecutor may also be disqualified for having a “noneconomic, personal interest in the outcome of the prosecution.” Commonwealth v. Stafford, 749
A.2d 489, 494 (2000). If the conflict affects the entire District Attorney’s office, the matter
should be referred elsewhere, or dismissed. See, e.g., Stafford, 749 A.2d at 493-94 (discussing
referral to the Attorney General of matter in which district attorney’s office was potentially
disqualified).
Pennsylvania courts have repeatedly condemned prosecutors’ improper public statements
concerning a defendant, and found such statements sufficient to warrant disqualification. See,

16

 e.g., Commonwealth v. Theodore Brooks, Lulu McNeal, Valentino Birchett, Earl Christy, 1 Phila.
Co. Rptr. 440, 442 (Pa. Com. Pl. 1978) (disqualifying district attorney from further involvement
in case after he “issued a news release and went on the radio to say that the court had been too
lenient”); see also id. at 460 (“We are of the opinion that the District Attorney’s conduct
certainly violates the spirit of canon 7; and, more significantly, it trespasses upon a defendant’s
right to appear before a court uninfluenced by the extrajudicial conduct of the lawyer (District
Attorney) who appears or may appear against him on behalf of the Commonwealth.”).
In a case strikingly similar to this one, the Vermont Supreme Court disqualified a
prosecutor and referred the matter to the state’s Professional Conduct Board. State v. Hohman,
138 Vt. 502, 504, 420 A.2d 852, 854-55 (1980), overruled on other grounds by Jones v. Shea,
148 Vt. 307, 532 A.2d 571 (1987). In Hohman, “the state’s attorney found himself in a battle for
re-election” and ran an advertisement in a newspaper. Id. at 854. The ad stated that the
defendant had previously been convicted, that the conviction had been overturned, and that, “if I
am re-elected, I will vigorously prosecute Hohman and obtain a second conviction.” Id. Based
on those statements alone, the Court “strongly condemn[ed] the conduct of the state’s attorney in
this case,” noting that the “power to prosecute ought never to be manipulated for personal or
political gain.” Id. at 855. The Court reversed the trial court’s denial of disqualification, and
held that “because serious questions exist as to the ethical propriety of the state’s attorney’s
conduct, we will refer this matter to the Professional Conduct Board.” Id. The statements at
issue in Hohman were far less inflammatory, and far more isolated, than Mr. Steele’s statements.
Here, the newly-elected District Attorney has repeatedly made public statements
violating the Pennsylvania Rules of Professional Conduct and has infringed on Mr. Cosby’s right
to a fair trial. During his recent campaign, Mr. Steele used TV ads, public statements, and flyers
referring to Mr. Cosby as a “sexual predator” and lambasting “his opponent’s failure to prosecute

17

 Bill Cosby.” McMonagle Decl., Ex. C at 4. In these public statements, Mr. Steele asserted the
office “didn’t even try” to use the testimony of third party witnesses and that the failure to
prosecute Mr. Cosby was tantamount to “not looking out for the victims.” Id., Ex. D. Mr.
Steele’s statements made no mention of the Commonwealth’s non-prosecution agreement, and
instead suggested he would prosecute Cosby if elected as District Attorney. Id. The
Montgomery County District Attorney’s Office did nothing to stop Mr. Steele’s statements. On
the contrary, the office suggested that old decisions of non-prosecution are being re-evaluated,
again making no mention of the Commonwealth’s non-prosecution agreement with Mr. Cosby.
Id., Ex. F at 4.
These statements—made by the sitting First Assistant District Attorney and condoned by
the entire office—plainly violated Pennsylvania Rule of Professional Conduct 3.8 (“Special
Responsibilities of Prosecutors”). The statute requires that the “prosecutor in a criminal case
shall . . . refrain from making extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused.” Here of course, the express purpose of Mr.
Steele’s campaign statement was to increase public condemnation of Mr. Cosby and, by
extension, Mr. Steele’s political opponent. In addition, the district attorney’s office was
obligated to “exercise reasonable care” to prevent Mr. Steele from making these improper
statements. Pa. R. Prof’l Conduct 3.8(e). It failed to do so, and instead encouraged him and
fanned the flames by implicitly disclosing that it was re-opening an investigation of Mr. Cosby.
McMonagle Decl., Ex. F.
“A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate.” Pa. R. Prof. Conduct 3.8, Explanatory Comment. Mr. Steele’s repeated violations of
this duty were willful and inexcusable, and worse, were tacitly condoned by the district
attorney’s office in Montgomery County. Further, the misconduct has inflamed the public

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 against Mr. Cosby, both within this district and throughout the country. Mr. Steele and the office
should be disqualified.
III.

CONCLUSION
For the reasons set forth above, the defendant respectfully requests that the Court grant

this Petition and dismiss all charges following an evidentiary hearing on these matters. In the
alternative, the defendant requests the Court disqualify Mr. Steele and the Montgomery County
District Attorney’s office from continued involvement in this prosecution.
January 10, 2016

Respectfully Submitted,

_________________________________
Brian J. McMonagle
MCMONAGLE, PERRI, MCHUGH, &
MISCHAK P.C.
1845 Walnut Street, 19th Floor
Philadelphia, PA 19103
(215) 981-0999; Fax 215-981-0977
Christopher Tayback
Joseph Sarles
(pro hac vice admission pending)
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
(213) 443-3000; Fax (213) 443-3100
Email: christayback@quinnemanuel.com
josephsarles@quinnemanuel.com
Monique Pressley
(pro hac vice admission pending)
THE PRESSLEY FIRM, PLLC
1629 K Street NW, Suite 300
Washington, DC 20036
(202) 973-0181; Fax (240)235-3388
Email: mdpressley@thepressleyfirm.com
Attorneys for Defendant

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