Final UPDATE, 1:51 PM: The first of the expected two-day Bill Cosby pre-trial hearings has just adjourned for today after a short return to the courtroom following the recess in the 2004 sexual assault case.
Cosby, his lawyers and the prosecutors from the Montgomery County D.A.’s office will all be back on Wednesday in Judge Steven O’Neill’s courtroom. The judge advised the defense side to submit documentation that reinforce their statements today in regards to a 2005 no prosecution decision by the then D.A. An obviously irritated O’Neil, who has had the parties in his courtroom several times this year, said anything that can’t be substantiated will be pulled from the official record. Additionally, tomorrow the defense is expected to put forth its argument that the trio felony charges of second-degree aggravated indecent assault should be tossed out because Cosby’s right to due process was violated.
The POV is that the more than a decade delay after the alleged crime in question occurred injured the once beloved actor. “The Commonwealth’s choices about how to prosecute this case, combined with its lengthy delay in bringing charges, impose an impossible burden on Mr. Cosby,” said the defense in a recent filing.
Cosby left the courtroom quickly today and without saying a word.
2nd UPDATE, 11:20 AM: First it was déjà vu at today’s pre-trial hearing for Bill Cosby’s upcoming trial over the alleged 2004 sexual assault of Andrea Constand and now it’s a holding pattern in Norristown, PA. Coming back from the lunch break, Judge Steven O’Neill has moved prosecutors from the Montgomery County D.A.’s office and Cosby’s defense team out of the courtroom to review and discuss the various motions and accompanying evidence at play today, including a filing to dismiss the nearly a year-old case.
All of which means that Tuesday’s hearing is in indefinite recess for how ever long the court decides the attorneys need to “work it out,” to quote Judge O’Neill.
UPDATE, 9:15 AM: It was a bit of déjà vu this morning in suburban Philadelphia at the latest hearing ahead of Bill Cosby’s June 2017 trial on three felony charges of second-degree aggravated indecent assault, with an old deal once again in the foreground.
“We are now in the quandary of a lifetime because the best witness on this particular issue is dead,” Cosby’s attorney Brian McMonagle told the Norristown, PA courtroom and an attending Cosby today, evoking the 2005 no-prosecution decision that previous Montgomery County D.A. Bruce Castor came to in return for Cosby agreeing to a civil case. McMonagle’s specific point today is that because of that decision, a 2005 deposition of Cosby’s where he admits using drugs for sex with women should not be allowed as evidence in the upcoming criminal trial.
The deposition in the civic case of Andrea Constand, who alleges that Cosby sexually assaulted her in 2004, became public last year and was seen by many as confirmation of accusations made against the actor over the decades. “And he’s dead because [prosecutors] waited 12 years to bring this prosecution,” McMonagle added, referring to past Cosby lawyer Walter Phillips Jr., who died in February 2015.
Then newly elected D.A. Kevin Steele filed the criminal charges against Cosby late last year just before the state’s 12-year statute of limitations expired on Constand’s case. Cosby was arraigned and released on $1 million bail December 30 without entering a plea.
Early on in the case, the actor’s defense team has tried to use the verbal immunity determination Castor granted in 2005 as a shield. It was batted away in hearings in February where current D.A. Steele and his team successfully argued against the unusual Castor promise because it was never put in writing nor followed the set procedure for such arrangements. Subsequently in motions and appeals, the somewhat rotating team of attorneys representing Cosby sought to have the arrangement reinstated – to no success.
With today and tomorrow’s hearings set to determine whether the deposition will be admitted along with testimony of 13 other women who’ve claimed Cosby sexually assaulted or drugged them, Constand can testify in the only criminal case against Cosby.
The defense once again sought to kneecap the process by waving the Castor deal in the court’s face. Judge Steven O’Neil, who determined earlier this year that the Castor arrangement wasn’t binding, didn’t display much patience with the tactic. He implored McMonagle to display evidence that lawyers for Cosby actually asserted that such a promise was made and that it was conveyed to Phillips before the actor was deposed in the Constand civil case. McMonagle did not present any evidence to answer the judge’s questions.
Assistant D.A. M. Stewart Ryan told the judge that his office also felt there were now “credibility” issues with Castor, who served as Pennsylvania’s acting Attorney General for just under two weeks this summer. In his testimony and statements on the decision not to prosecute Cosby back in 2005 for lack of evidence, the former D.A. has given a trio of different version of what was and was not promised. Stewart also argued that even if that promise had been made and was binding, Cosby didn’t refer to it when he was deposed 11 years ago and didn’t plead his Fifth Amendment, as he could have in the civil matter.
McMonagle still asserted to the court that Castor made the promise to Phillips, and any ruling otherwise is essentially accusing the GOP ex-D.A. of perjuring himself in the matter. “This case,” the Philly-based lawyer said, “unfortunately involves a situation where somebody else gave their word… and Mr. Steele doesn’t like that promise.”
Today’s hearing is now on break until around 10:30 AM PT.
PREVIOUS, 6:21 AM: Facing a criminal trial next June in Pennsylvania for the alleged 2004 sexual assault of former Temple University employee Andrea Constand, Bill Cosby has just arrived at the courthouse in Norristown, PA for a pivotal hearing that could determine whether more than a dozen other accusers will be able to testify. The expected two-day session in front of state Judge Steven O’Neill will also examine if taped phone conversations between the 79-year-old actor and Constand’s mother, and 2005 deposition in the civil case, can be used as evidence in the trial schedule to start June 5.
If found guilty, the much-accused Cosby could end up behind bars for a decade and pay millions in fines on three felony charges of second-degree aggravated indecent assault. The Montgomery County D.A.’s office charged Cosby late last year to get in under the wire of Pennsylvania’s 12-year statute of limitations for such sex crimes. Cosby was arraigned December 30 and released on $1 million bail without entering a plea.
Cosby, reportedly near-blind, entered the courthouse Tuesday morning just before 9 AM ET assisted by two handlers and walking with a cane. Among those also in attendance is Gloria Allred, who is representing the majority of the 13 women who claim they were sexually assaulted or drugged by Cosby in the past and who may take the stand next year. More than 50 women have come forward in the past two years to accuse Cosby of such acts over the decades. While the Pennsylvania case is the only criminal case, several civil cases are in progress nationwide.
Fighting back against the introduction of potential testimony from the 13 other women, Cosby’s legal team is expected to argue today that they must all take competency tests due to the “tainted, unreliable memories of women, now in their senior years,” as they said in a previous court document calling the matter “stale.”
Over the subsequent months since criminal charges were filed, Cosby has unsuccessfully tried in several courts in the Granite State to get the case dismissed, including as recently as September 6 – the last time he was in O’Neill’s courtroom. Since then, Cosby’s latest set of lawyers filed another motion for dismissal and the D.A’s office has fired back.
“He is an individual who has used his fame and fortune for decades to conceal his crimes and hide his true nature,” they said late last month in a filed reply. “He is not entitled to a dismissal now that the law has caught up to him,” D.A. Kevin Steele’s office added, noting the revelations of The Cosby Show actor’s use of drugs on women in a 2006 deposition in the Constand civil case that was made public last year.
More pretrial hearings are scheduled in Cosby’s criminal case later this month.
Anna Orso contributed to this report.
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