Odds are against dismissal of Cosby's sex assault case experts say

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Why Do Bill Cosby's Lawyers Say He Has Immunity?

NEW YORK, Jan 31 (Reuters) - Bill Cosby's lawyers may face difficulty in convincing a Pennsylvania judge this week to throw out sexual assault charges in light of what the disgraced comedian's defense team characterizes as a decade-old non-prosecution deal, legal experts said.

Cosby is due back in court in Norristown, Pennsylvania, on Tuesday, after the 78-year-old entertainer was charged last month with sex assault in 2004. The alleged victim says Cosby had plied with alcohol and drugs.

SEE MORE: Exhibit of Bill Cosby's art led to ethical questions

It is the only criminal prosecution that Cosby has ever faced, even though dozens of women have accused him of assault, in some cases decades ago.

The hearing outside Philadelphia will center on the defense's argument that the charges violate an agreement struck in 2005 with then-Montgomery County District Attorney Bruce Castor. Cosby's lawyers say Castor promised not to prosecute the comedian if he agreed to testify in a civil case brought by his accuser, Andrea Constand.

See photos of Cosby as he was arraigned:

13 PHOTOS
Bill Cosby arraigned on sexual assault charges
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Odds are against dismissal of Cosby's sex assault case experts say
ELKINS PARK, PA - DECEMBER 30: Comedian Bill Cosby is seen leaving on December 30, 2015 at the District Court in Elkins Park, Pennsylvania. Cosby has been charged for aggravated indecent assault for a 2004 incident involving Temple University employee Andrea Constand. (Photo by Gilbert Carrasquillo/WireImage)
ELKINS PARK, PA - DECEMBER 30: (EDITORS NOTE: Best quality available) In this handout image provided by the Elkins Park, Montgomery County District Attorney's office, William H. Cosby poses for a mugshot photo during his arraignment December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh and charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released.after posting $100,000, the required 10 percent of bail. (Photo by Montgomery County District Attorney's Office via Getty Images)
ELKINS PARK, PA - DECEMBER 30: Bill Cosby is led from the Cheltenham Police Station after his arraignment at Montgomery County District Court on sexual assault charges December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released after posting the required 10 percent of the bail, $100,000. (Photo by William Thomas Cain/Getty Images)
Bill Cosby leaves his arraignment at Montgomery County District Court in Cheltenham, Pa., on Wednesday, Dec. 30, 2015, after county prosecutors filed sex assault charges against him. (Tom Gralish/Philadelphia Inquirer/TNS via Getty Images)
ELKINS PARK, PA - DECEMBER 30: Comedian Bill Cosby (C) arrives on December 30, 2015 at the District Court in Elkins Park, Pennsylvania. Cosby has been charged for aggravated indecent assault for a 2004 incident involving Temple University employee Andrea Constand. (Photo by Gilbert Carrasquillo/WireImage)
US comedian Bill Cosby arrives December 30, 2015 to the Court House in Elkins Park, Pennsylvania to face charges of aggravated indecent assault. Cosby was arraigned over an incident that took place in 2004 -- the first criminal charge filed against the actor after dozens of women claimed abuse.AFP PHOTO/KENA BETANCUR / AFP / KENA BETANCUR (Photo credit should read KENA BETANCUR/AFP/Getty Images)
US comedian Bill Cosby December 30, 2015 at the Court House in Elkins Park, Pennsylvania to face arraignment on charges of aggravated indecent assault. Cosby was arraigned over an incident that took place in 2004 -- the first criminal charge filed against the actor after dozens of women claimed abuse.AFP PHOTO/KENA BETANCUR / AFP / KENA BETANCUR (Photo credit should read KENA BETANCUR/AFP/Getty Images)
Montgomery County First Assistant District Attorney Kevin Steele speaks during a press conference announcing the indictment of Bill Cosby for alleged sexual assault on Wednesday, Dec. 30, 2015. At left is Cheltenham Township police Chief John Norris, and at right is Samuel J. Gallen, chief of Montgomery County Detectives. (Alejandro A. Alvarez/Philadelphia Inquirer/TNS via Getty Images)
LOS ANGELES, DECEMBER 30: Attorney Gloria Allred speaks during a press conference in response to the felony sexual assault charges levied against comedian Bill Cosby stemming from an alleged January 2004 assault of Temple University employee Andrea Constand at Cosby's Pennsylvania home December 30, 2015 in Los Angeles, California. Allred represents 29 alleged sexual assault victims of Bill Cosby. (Photo by Frederick M. Brown/Getty Images)
ELKINS PARK, PA - DECEMBER 30: Bill Cosby's home is seen after his arraignment at Montgomery County District Court on sexual assault charges December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released after posting the required 10 percent of the bail, $100,000. (Photo by William Thomas Cain/Getty Images)
ELKINS PARK, PA - DECEMBER 30: Bill Cosby's home is seen after his arraignment at Montgomery County District Court on sexual assault charges December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released after posting the required 10 percent of the bail, $100,000. (Photo by William Thomas Cain/Getty Images)
ELKINS PARK, PA - DECEMBER 30: Bill Cosby's home is seen after his arraignment at Montgomery County District Court on sexual assault charges December 30, 2015 in Elkins Park, Pennsylvania. Cosby was arraigned at 2:30 p.m. before Magisterial District Judge Elizabeth McHugh charged with Aggravated Indecent Assault. Bail was set at $1 million under the condition that he surrender his passport and have no contact with the victim. Cosby was released after posting the required 10 percent of the bail, $100,000. (Photo by William Thomas Cain/Getty Images)
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Castor has backed that account in an email sent in September to his successor as district attorney. In that email, Castor said he had reached a binding deal with Cosby's lawyers.

The defense has not produced any written agreement, a point made by prosecutors in seeking to undermine Castor's story.

"Cosby had good attorneys," said Anne Poulin, a law professor at Villanova University in Pennsylvania. "If they had negotiated something, I think they would have gotten something in writing."

SEE ALSO: Steve Harvey talks 'friend' Cosby, Oscar boycott and Miss Universe fiasco

But in court papers filed on Thursday, Cosby's lawyers said prosecutors had waited so long to bring charges that evidence verifying the agreement had disappeared.

Cosby's former lawyer has since died, and documents that might have corroborated the deal have been lost, they said.

Wesley Oliver, a law professor at Duquesne University in Pennsylvania, said it was highly unlikely that a document as critical as a non-prosecution agreement would go missing.

"This is not like some receipt for his taxes in 1953," he said. "This is a get-out-of-jail free card. This is something you keep in a safety deposit box in a temperature-controlled room."

See photos of Cosby through the years:

34 PHOTOS
Bill Cosby through the years
See Gallery
Odds are against dismissal of Cosby's sex assault case experts say
July 1973: The actor, Bill Cosby, in Perth. (Photo by Hulton Archive/Getty Images)
NEW YORK, NY - JANUARY 16: Actor Bill Cosby leaves his New York City home accompanied by his wife, Camille (L,) and a young woman with her hands over her face, believed to be one of his four daughters, enroute to Los Angeles, CA, 16 January 1997 after his son Enis William Cosby was found shot to death along a California freeway. The young Cosby, 28, was found in a pool of blood after he stopped to change a flat tire. (Photo credit should read BOB STRONG/AFP/Getty Images)
WASHINGTON, : Actor and comedian Bill Cosby (R) and his wife Camille arrive at the White House 06 December for a reception prior to being honored at the 21st annual national Kennedy Center Honors. Cosby and the other honorees will be saluted later 06 December at a performance in the Kennedy Center's Opera House. AFP PHOTO/CHRIS KLEPONIS (Photo credit should read CHRIS KLEPONIS/AFP/Getty Images)
NEW YORK, UNITED STATES: Co-hosts Oprah Winfrey and Bill Cosby joke with each other during the opening of the 2000 Essence Awards 14 April, 2000 at Radio City Music Hall in New York City. Actor Danny Glover and basketball star Michael Jordan were two of the honorees at the ceremonies sponsored by Essence Magazine. AFP PHOTO/Matt CAMPBELL (Photo credit should read MATT CAMPBELL/AFP/Getty Images)
386603 06: Rachel Robinson and Actor Bill Cosby, who was the Master of Ceremonies, share a moment March 12, 2001 at The Jackie Robinson Foundation 2001 Awards Dinner at The Waldorf Astoria Hotel in New York City. (Photo by George De Sota/Newsmakers)
NEW YORK, UNITED STATES: Actor Bill Cosby arrives at the NBC 75th Anniversary Special at Rockefeller Plaza in New York 05 May 2002. The actual anniversary fell on 15 November, 2001. AFP PHOTO Doug KANTER (Photo credit should read DOUG KANTER/AFP/Getty Images)
WASHINGTON, DC - JULY 9: Actor Comedian Bill Cosby shows off the Presidential Medal of Freedom he received from U.S. President George W. Bush during a ceremony July 9, 2002 at the White House in Washington, DC. The medal is the highest civilian award given to those who have made meritorious contributions to the security or national interests of the United States, to world peace, or to cultural or other significant public or private endeavors. (Photo by Mark Wilson/Getty Images)
PHILIDELPHIA - MAY 22: Comedian and member of the Board of Trustees of Temple University Bill Cosby enters the arena prior to speaking to the graduates of the Class of 2003 at Temple University's commencement ceremony in The Liacouras Center May 22, 2003 in Philadelphia, Pennsylvania. (Photo by Don Murray/Getty Images)
LOS ANGELES - SEPTEMBER 21: Actor Bill Cosby poses backstage with his 'Bob Hope Humanitarian' award during the 55th Annual Primetime Emmy Awards at the Shrine Auditorium September 21, 2003 in Los Angeles, California. (Photo by Carlo Allegri/Getty Images)
PHILADELPHIA - DECEMBER 12: Comedian Bill Cosby introduces the film 'Fat Albert' at Temple University's Liacouras Center for the world premiere of 'Fat Albert' December 12, 2004 in Philadelphia, Pennsylvania. The film, based on Bill Cosby's 'Fat Albert' cartoon series of the 70's, opens nationwide Christmas day. (Photo by William Thomas Cain/Getty Images)
NEW YORK - DECEMBER 11: Comedian Bill Cosby performs at the Apollo Theater on December 11, 2005 In New York City. (Photo by Brad Barket/Getty Images)
WASHINGTON - OCTOBER 14: (AFP OUT) Entertainer Bill Cosby speaks during a taping of 'Meet the Press' at the NBC studios October 14, 2007 in Washington, DC. Cosby spoke on the new book he co-authored 'Come On, People: On the Path from Victims to Victors.' (Photo by Alex Wong/Getty Images for Meet the Press)
NEW YORK - NOVEMBER 19: Bill Cosby arrives at the Esquie Magazine and Village Academies event honoring Bill Cosby at Esquire North November 19, 2007 in New York City. (Photo by Rob Loud/Getty Images)
WASHINGTON - OCTOBER 26: Comedian Bill Cosby poses for photographers at the 12th annual Mark Twain Prize for American Humor at the John F. Kennedy Center on October 26, 2009 in Washington, DC. Cosby is this year's honoree. (Photo by Brendan Hoffman/Getty Images)
NEW YORK - JUNE 08: Bill Cosby and his wife Camille Cosby speak onstage at the Apollo Theater 75th Anniversary Gala at The Apollo Theater on June 8, 2009 in New York City. (Photo by Bryan Bedder/Getty Images)
PHILADELPHIA - APRIL 6: Bill Cosby, Ed.D. poses for pictures before accepting the Marian Anderson Award at a gala concert produced in partnership with The Philadelphia Orchestra April 6, 2010 at the Kimmel Center for the Performing Arts in Philadelphia, Pennsylvania. (Photo by William Thomas Cain/Getty Images)
NEW YORK - MARCH 08: Comedian Bill Cosby attends the Jackie Robinson Foundation Annual Awards Dinner at the The Waldorf Astoria on March 8, 2010 in New York City. (Photo by Bryan Bedder/Getty Images for The Jackie Robinson Foundation)
LAS VEGAS - OCTOBER 09: Actor/comedian Bill Cosby speaks onstage during Andre Agassi Foundation for Education's 15th Grand Slam for Children benefit concert at the Wynn Las Vegas October 9, 2010 in Las Vegas, Nevada. The event raises funds to help improve education for underserved youth in the Las Vegas community. (Photo by Ethan Miller/Getty Images)
NEW YORK, NY - NOVEMBER 02: Comedian Bill Cosby promotes new book 'I Didn't Ask To Be Born: But I'm Glad I Was' at the Barnes & Noble, 5th Avenue on November 2, 2011 in New York City. (Photo by Slaven Vlasic/Getty Images)
NEW YORK, NY - APRIL 10: Bill Cosby accepts the Impact Award for 'The Cosby Show' with (L-R) actor Malcolm-Jamal Warner, presenter Stevie Wonder, actors Raven-Symone and Sabrina LeBeauf onstage at the 9th Annual TV Land Awards at the Javits Center on April 10, 2011 in New York City. (Photo by Larry Busacca/Getty Images)
NEW YORK, NY - MARCH 07: Host Bill Cosby speaks onstage at the 2011 Jackie Robinson Foundation awards gala atThe Waldorf=Astoria on March 7, 2011 in New York City. (Photo by Stephen Lovekin/Getty Images for The Jackie Robinson Foundation)
NEW YORK, NY - MAY 14: Bill Cosby performs during the Screen Gems Presents The Steve & Marjorie Harvey Foundation Gala at Cipriani Wall Street on May 14, 2012 in New York City. (Photo by Dimitrios Kambouris/Getty Images for Steve & Marjorie Harvey Foundation)
BOSTON, MA - SEPTEMBER 13: Actor Bill Cosby gestures to the crowd after throwing out the first pitch prior to the game between the Boston Red Sox and the New York Yankees on September 13, 2012 at Fenway Park in Boston, Massachusetts. (Photo by Jared Wickerham/Getty Images)
NEW YORK, NY - MARCH 05: Bill Cosby hosts the Jackie Robinson Foundation Awards Gala at The Waldorf=Astoria on March 5, 2012 in New York City. (Photo by Stephen Lovekin/Getty Images for The Jackie Robinson Foundation)
BEVERLY HILLS, CA - JUNE 15: Actor/comedian Bill Cosby speaks onstage during the 100th anniversary celebration of the Beverly Hills Hotel & Bungalows supporting the Motion Picture & Television Fund and the American Comedy Fund hosted by Bill Cosby at the Beverly Hills Hotel on June 15, 2012 in Beverly Hills, California. (Photo by Michael Buckner/Getty Images for BHH)
NEW YORK, NY - NOVEMBER 06: Bill Cosby performs at the 7th annual 'Stand Up For Heroes' event at Madison Square Garden on November 6, 2013 in New York City. (Photo by Jemal Countess/Getty Images)
WASHINGTON, DC - AUGUST 22: Bill Cosby speaks during the 55th Anniversary of Ben's Chili Bowl on August 22, 2013 in Washington, DC. (Photo by Kris Connor/Getty Images)
NEW YORK, NY - MARCH 04: Dr. Bill Cosby speaks onstage at the The Jackie Robinson Foundation Annual Awards' Dinner at the Waldorf Astoria Hotel on March 4, 2013 in New York City. (Photo by Stephen Lovekin/Getty Images for The Jackie Robinson Foundation)
LAS VEGAS, NV - SEPTEMBER 26: Comedian/actor Bill Cosby performs at the Treasure Island Hotel & Casino on September 26, 2014 in Las Vegas, Nevada. (Photo by Ethan Miller/Getty Images)
NEW YORK, NY - APRIL 26: Comedian Bill Cosby addresses the Press Room during the 2014 American Comedy Awards at Hammerstein Ballroom on April 26, 2014 in New York City. (Photo by Michael Loccisano/Getty Images)
AUSTIN, TX - MARCH 10: Actor/comedian Bill Cosby performs onstage at Funny Or Die Clubhouse + Facebook Pop-Up HQ @ SXSW - Day 2 on March 10, 2014 in Austin, Texas. (Photo by Jonathan Leibson/Getty Images)
NEW YORK, NY - APRIL 26: Comedian Bill Cosby attends 2014 American Comedy Awards at Hammerstein Ballroom on April 26, 2014 in New York City. (Photo by Michael Loccisano/Getty Images)
MELBOURNE, FL - NOVEMBER 21: Actor Bill Cosby performs at the King Center for the Performing Arts on November 21, 2014 in Melbourne, Florida. (Photo by Gerardo Mora/Getty Images)
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Castor may appear at the hearing to testify that he promised not to prosecute in exchange for Cosby's civil testimony. Castor's lawyer, Robert Pugh, said he had advised Castor not to comment publicly on the case.

Kevin Steele, who was elected last year as Montgomery County's district attorney after vowing during the campaign to work on charging Cosby, cited Cosby's recently unsealed testimony as crucial evidence in filing criminal charges last month.

Cosby has portrayed the encounter as consensual but acknowledged giving Constand Benadryl and wine, which she claims incapacitated her.

SEE MORE: Deposition key to Bill Cosby's criminal charges questioned

Cosby's lawyers did not return a call for further comment.

Even if Castor's claim is taken at face value, prosecutors have argued the deal did not carry formal immunity without a judge's approval under state law. In addition, they have said Castor did not have the authority to make such an arrangement.

Poulin, the Villanova professor, said she would be "shocked" if a judge found Castor had the power to "bind his office in perpetuity."

She also said that if a non-prosecution agreement really existed, Cosby could have sought a formal order of immunity from the judge overseeing the civil case.

RELATED: Cosby lawyers to ask Massachusetts judge to seal evidence in sex case

That said, some experts said a judge could find that if Cosby relied on Castor's promise, it would be unfair for him to suffer the consequences.

Judy Ritter, a law professor at Widener University in Delaware, said the judge was unlikely to dismiss the entire case but could theoretically bar prosecutors from using Cosby's civil testimony.

"That depends on the finding of the facts," she said. "Who promised what, and what was said?"


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