UPDATED: Case against Cosby will move forward with Montco DA as prosecutor

A Montgomery County judge who refused to throw out the sex assault case against Bill Cosby has denied a defense request to disqualify the prosecutor from the case.

The comedian’s lawyers were hoping to disqualify Montgomery County District Attorney Kevin Steele because the Cosby case was an issue in last fall’s hotly contested district attorney’s race against Bruce Castor.

Steele ran ads criticizing Castor for not prosecuting Cosby when he had the chance.

The judge denied the defense request Wednesday to remove Steele. He also denied the defense team’s request that the charges be dropped because Castor had made an agreement with Cosby’s attorneys in 2005 not to prosecute the entertainer.

The case will now move to a preliminary hearing March 8 to see if prosecutors have enough evidence to prove Cosby assaulted the accuser in 2004.

They reopened the case last year based on Cosby’s newly released deposition in the accuser’s lawsuit and similar accusations raised by dozens of other women.

Common Pleas Judge Steven O’Neill issued the two rulings after a grueling two-day hearing.

Former Montgomery County District Attorney Bruce Castor’s testimony dominated the first day. He testified that he had agreed not to prosecute the comedian because he didn’t think he could get a criminal conviction, and it would permit Constand to pursue a civil suit.

Longtime Cosby attorney John P. Schmitt testified Wednesday that he hired respected Philadelphia attorney Walter Phillips to represent Cosby in the case, and that, based on what Phillips shared with him, both lawyers believed their client could never be prosecuted.

After Castor dropped the criminal probe, Constand filed a civil suit which led to potentially incriminating admissions from Cosby in a deposition.

Schmitt testified that had he not believed Cosby was immune from prosecution, “I certainly wouldn’t have let him sit for a deposition.”

Castor has said that he made the statement because he didn’t think he could get a criminal conviction, and it would permit Constand to pursue a civil suit.

Castor’s pledge not to prosecute Cosby, 78, was not negotiated with the comedian’s attorneys, and was never put in writing.

Steele emphasized the lack of a written agreement in his arguments Wednesday. To bolster his case, he submitted documents associated with negotiations in 2005 over an interview Cosby was considering with the tabloid The National Enquirer. Steele argued that the documents show agreements involving the disclosure of sensitive information are always thoroughly vetted. No such interview was ever published.

Just before lunch, Steele asked Judge Steven T. O’Neill to rule immediately on whether the prosecution should proceed, arguing Cosby’s attorneys had not shown enough evidence to make their case.

O’Neill said he would consider that request, but didn’t promise to rule right away.

Constand’s civil suit against Cosby was settled in 2006, but when he was deposed in the case, Cosby said he’d had a consensual sexual encounter with Constand in his home, and he admitted he’d obtained drugs in the past to give women with whom he hoped to have sex.

That admission was critical in reopening the criminal case against Cosby. His attorneys said he gave the deposition with the understanding that he wouldn’t be prosecuted and that his statements could not be used against him.

Former Montgomery County District Attorney Risa Vetri Ferman charged Cosby with aggravated indecent assault in December. If convicted of the three counts against him, Cosby could face up to 10 years in prison.

The Associated Press contributed to this report.