(UPDATE with testimony from later in the morning) “I’m apologizing because this is a dirty old man with a young girl,” the courtroom heard Bill Cosby say in a deposition from over a decade ago. Now on trial for the 2004 rape of Andrea Constand, the actor continued in the old deposition, “My apology was I’m in trouble with these people and I’m an old man and this is their young daughter.”
The transcript read aloud by Montgomery County police officer James Reape in the Norristown, PA courtroom added that the then 68-year-old Cosby thought he was talking to Constand’s mother on the phone in early 2005.
“Andrea and I had sex and now Andrea was very upset,” Cosby summarized the situation later in the deposition and made it clear he did not want the general public to know about his behavior and the drugs involved. While a tape recording of a phone conversation and various police interviews and depositions have been played or read out in court by Montgomery County D.A. Kevin Steele, his prosecution team or witnesses, Cosby himself has not taken the stand.
As Deadline has learned, the actor and his defense team are weighing whether to reverse his assertion that he would not give testimony in this trial.
“I became a person being attacked,” Cosby said in the transcript from a subsequent civil case pursued by the now 44-year old Constand. “To be perfectly frank, I’m thinking and praying that no one is recording,” the actor adds as to why he did not want to mail information to the Constands about Benadryl or its use on the night of the alleged rape.
If found guilty by the jury of seven men and five women for the three felony charges of second-degree aggravated indecent assault, the now 79-year-old Cosby could face more than ten years behind bars.
Due to the longer than usual 12-year duration of Pennsylvania’s statute of limitations for sex crimes, the trial in the Philadelphia suburb is the only criminal case in the nation against the much-accused Cosby. While over 60 women have publicly accused Cosby of drugging and sexually assaulting them over the decades and are pursuing civil cases, all of those incidents occurred in jurisdictions where the statute for criminal proceedings has expired.
Cosby has always insisted that the encounter between himself and Constand was consensual.
On the phone with Constand and her mother nearly a year after the incident, Cosby said he couldn’t tell what the pills were, but promised he would provide the name of the product to them – which he never did. On January 25, 2005, 10 days after the first conversation with the Constands, Cosby turned over a series of medications, including blue colored Benadryl pills to officers of the Cheltenham Township County police who were interviewing him at his lawyer’s office in NYC. Yesterday Richard Schaffer, who was one of the officers present at that meeting, testified about his investigation and the Cosby interview.
The seemingly last day of the first week of the trial continued where Thursday had left off, with the Montgomery County detective on the stand reading aloud from Cosby’s 2005 and 2006 depositions in the Constands’ civil case against him. Unsealed in 2015 and reigniting attention to growing accusations against the actor, those depositions detailed Cosby’s version on the relationship and sexual interactions between the actor and Constand.
Centering on the night of the alleged assault in early 2004, the depositions reveal that Cosby admitted he gave the former Temple University basketball staffer at least two Benadryl that night, supposedly for stress. In filings and on the stand earlier this week, Constand has said those pills left her disoriented, she passed out on a couch and was molested by Cosby while unconscious.
“It’s the best two hours I’ve ever spent,” Cosby says attempting a joke at one point on the transcript of the January 2005 phone call with Constand and her mother. The statement was read in a deadpan manner by Reape that made the gallows nature resonate in the Keystone State courtroom. “I never used the word ‘hush money,’” Cosby also said on the same transcript, putting paid to any notion that the actor thought at the time the calls from the Constands were a shakedown.
At one point in a second telephone conversation with Andrea’s mother Gianna, Cosby talked about wanting to “set up something” for her daughter, the former Director of Operations of Temple’s women basketball program, like sending her to graduate school. Seeking to arrange a face-to-face meeting in Florida on the matter, Cosby had a William Morris employee and then lawyer Marty Singer follow up with calls to the Constands. The family neither met with Cosby nor took money for that “something” he offered. Constand’s later civil suit against Cosby was eventually settled in 2006 in the low seven figures.
It’s worth noting that in 2016, Cosby tried to get that settlement back by suing Constand, her lawyers and her mother in federal court. As the criminal case started to gain steam and head to trial, the actor dropped the civil matter last summer.
Though rarely referenced in this trial until Thursday, Constand pursued a civil case against the actor in 2006 after previous Montgomery County D.A. Bruce Cantor in 2005 declined to pursue a criminal case. Under an agreement with Cantor and a now deceased Cosby lawyer not to open a criminal case, Cosby did not invoke his Fifth Amendment rights in the subsequent civil case. That is why the extensive 2005 and 2006 depositions were taken.
The latter part of this morning saw cross-examination of Reape by Cosby lawyer Brian McMonagle. More from current Montgomery County D.A. Kevin Steele followed. Reape’s testimony concluded around approximately 10:55 AM ET. The prosecution is expected to bring expert witnesses in sexual assault and toxicology.
Friday started off with Judge O’Neill and the lawyers going back and forth over looming evidentiary motions and their filing. The Judge shut down a defense motion that sought to examine Andrea Constand’s past relationships and sexual choices – another blow to Cosby’s side.
While it looks likely that the jury won’t be in court on Saturday, Judge O’Neill and attorneys on both sides will be working on administrative matters, as the prosecution wraps up its case.
UPDATE, 9:43 AM: The second part of the morning saw Dr. Veronique Valliere giving testimony about sexual assault and victim’s behavior. “The less a sexual assault is like the stereotype of a rape, it is even harder to identify as a sexual assault,” the forensic psychologist told the jury under questioning from Deputy D.A. Kristen Feden
Previously challenged by the defense on her merits as a witness, Valliere added on the stand of victims and their responses that “in a case where the offender has status, they may get backlash. She also said, “we have expectations that are misguided about how people respond to sexual assault.”
Valliere’s testimony had Cosby’s team up with a motion of a mistrial and an objection. “She is not allowed to bring up this case, that’s the danger we worried about and now they’ve crossed the line,” defense attorney Brian McMonagle told Judge Steven O’Neill after the jury had been released.
“The witness is telling this jury that this defendant is guilty,” the lawyer added. “If McMonagle has a problem with the statue, he needs to take it up with the legislature,” countered Deputy D.A. Feden.
After listening to both sides, Judge O’Neill denied the defense’s mistrial motion and overruled their objection – which did not go over well with the Cosby’s clearly frustrated team. Dr. Valliere’s testimony will continue this afternoon.