Cosby seeks dis­missal of charges

Lawyer: His ‘eye­sight and mem­ory have con­sid­er­ably de­clined’

Daily Local News (West Chester, PA) - - LOCAL NEWS - By Carl Hessler Jr. chessler@21st-cen­tu­ry­media.com @Mont­coCourtNews on Twit­ter

NOR­RIS­TOWN >> En­ter­tainer Bill Cosby, whose “eye­sight and mem­ory have con­sid­er­ably de­clined” dur­ing the last 11 years has been prej­u­diced by pros­e­cu­tors’ decade-old de­lay in bring­ing sex­ual as­sault charges against him and there­fore the charges should be dis­missed, his lawyers ar­gued in court pa­pers.

Cosby’s lead de­fense lawyer Brian J. McMona­gle filed pa­pers in Mont­gomery County Court on Thurs­day ask­ing a judge to rule that Cosby’s “due process rights were vi­o­lated” by the prose­cu­tion’s “un­jus­ti­fied 10-year de­lay” in fil­ing charges against Cosby. McMona­gle ar­gued the al­le­ga­tions against Cosby first sur­faced in Jan­uary 2005 and he wasn’t charged un­til De­cem­ber 2015 and that that pre-arrest de­lay con­sti­tutes a de­nial of due process un­der the Penn­syl­va­nia and U.S. con­sti­tu­tions.

Cosby was prej­u­diced by the de­lay in fil­ing charges be­cause the death of his former lawyer, Wal­ter M. Phillips Jr., pre­vented him from prov­ing the ex­is­tence of what Cosby has ar­gued was a 2005 prom­ise by former county District At­tor­ney Bruce L. Cas­tor Jr. not to pros­e­cute the en­ter­tainer based on the claims made by al­leged vic­tim An­drea Con­stand.

“Mr. Cosby has fur­ther been prej­u­diced by the de­lay in his ar-

rest be­cause his eye­sight and mem­ory have con­sid­er­ably de­clined in the 11year pe­riod since the as­sault was al­leged to have taken place, thereby pre­vent­ing him from as­sist­ing in his de­fense,” McMona­gle wrote in court pa­pers.

Cosby has fur­ther been prej­u­diced by the de­lay in his arrest be­cause District At­tor­ney Kevin R. Steele “made the prose­cu­tion of Mr. Cosby a fo­cal point of his cam­paign for district at­tor­ney in Oc­to­ber 2015, gen­er­at­ing a great deal of neg­a­tive pub­lic­ity to­ward Mr. Cosby,” McMona­gle ar­gued.

“When the com­mon­wealth’s de­lay causes ac­tual prej­u­dice to a de­fen­dant, ‘the ab­sence of valid rea­sons to jus­tify the late fil­ing of charges will man­date the trial’ court to dis­miss the charges,” McMona­gle ar­gued, cit­ing state court prece­dent.

It’s un­clear when Judge Steven T. O’Neill will hold a hear­ing on the re­quest.

Cosby, 79, faces a June 5, 2017 trial on charges of ag­gra­vated in­de­cent as­sault in con­nec­tion with al­le­ga­tions he had in­ap­pro­pri­ate sex­ual con­tact with Con­stand, a former Tem­ple Univer­sity ath­letic de­part­ment em­ployee, at his Chel­tenham home be­tween mid-Jan­uary and mid-Fe­bru­ary 2004.

While Steele in­di­cated he will be fil­ing a for­mal re­sponse to the de­fense re­quest he main­tained Cosby’s lawyers are “rais­ing once again the fic­tional as­ser­tion” that pros­e­cu­tors are fail­ing to fol­low a “prom­ise” that Cosby would not be pros­e­cuted. Steele, who claims no im­mu­nity or­der or prom­ise ever ex­isted, pointed out a judge pre­vi­ously ex­am­ined the is­sue and al­lowed pros­e­cu­tors to pro­ceed with the charges.

“The mo­tion filed to­day is pri­mar­ily a re­brand­ing of the same failed ar­gu­ments the Cosby de­fense team has pre­vi­ously put forth,” Steele said. “We re­main ready to present our ev­i­dence in court, and let a jury de­cide.”

Thurs­day’s court fil­ing is not the first time McMona­gle has re­lied in part on Cas­tor’s al­leged 2005 prom­ise in an at­tempt to have the charges dis­missed against Cosby. Shortly af­ter Cosby was ar­rested last De­cem­ber McMona­gle asked the judge to dis­miss the charges, on the grounds Steele in­ten­tion­ally breached the 2005 prom­ise that spec­i­fied Cosby would never be charged.

Af­ter a hear­ing in Fe­bru­ary, O’Neill re­jected Cosby’s claim that he had a valid non-prose­cu­tion prom­ise from Cas­tor and moved Cosby’s crim­i­nal case for­ward. Cosby’s sub­se­quent ap­peal of O’Neill’s or­der to the state Su­pe­rior Court

was ul­ti­mately quashed in April, set­ting the stage for Cosby’s case to move for­ward.

The lat­est ap­peal deals solely with the is­sue of the al­leged un­fair­ness cre­ated by the pre-arrest de­lay.

The de­fense team’s re­peated re­quests to dis­miss the charges has pri­mar­ily rested on the word of Cas­tor, district at­tor­ney from 2000 to 2008, who dur­ing seven hours of tes­ti­mony on Feb. 2, claimed he made a bind­ing prom­ise to Cosby and his then lawyer, Phillips, in 2005 that Cosby would never be pros­e­cuted in con­nec­tion with Con­stand’s al­le­ga­tions. Phillips has since died and Cas­tor has been the prime de­fense wit­ness re­gard­ing the al­leged prom­ise.

Stop­ping short of calling his de­ci­sion an “agree­ment,” Cas­tor claimed he alone as a “sov­er­eign” en­tity had the au­thor­ity to make a bind­ing de­ci­sion. Cas­tor pre­vi­ously tes­ti­fied he made the prom­ise af­ter be­com­ing con­cerned about ev­i­den­tiary is­sues dur­ing the 2005 in­ves­ti­ga­tion and de­ter­min­ing there wasn’t enough “re­li­able and ad­mis­si­ble” ev­i­dence to pros­e­cute Cosby at that time.

The de­ci­sion, Cas­tor has tes­ti­fied, was made to cre­ate an at­mos­phere that would in­duce Cosby to tes­tify in Con­stand’s civil lit­i­ga­tion against him and al­low Con­stand to pre­vail civilly and “make a lot of money.” That de­ci­sion not to pros­e­cute, Cas­tor im­plied, re­moved from Cosby the abil­ity to claim his Fifth Amend­ment pro­tec­tion against self-in­crim­i­na­tion, thus forc­ing him to sit for a de­po­si­tion un­der oath in the civil case over the course of four days be­tween Sep­tem­ber 2005 and March 2006. The civil case was ul­ti­mately set­tled for an undis­closed sum in July 2006.

Cur­rent pros­e­cu­tors re­opened the crim­i­nal in­ves­ti­ga­tion in July 2015 af­ter seg­ments of Cosby’s de­po­si­tion con­nected to the 2005 civil suit were un­sealed by a judge. In that de­po­si­tion, Cosby gave dam­ag­ing tes­ti­mony, al­legedly ad­mit­ting he ob­tained Quaaludes to give to women with whom he wanted to have sex.

The charges were lodged against Cosby on Dec. 30, 2015, be­fore the 12-year statute of lim­i­ta­tions to file charges ex­pired.

Steele and co-pros­e­cu­tors M. Ste­wart Ryan and Kris­ten Fe­den have ar­gued “the sup­posed 2005 agree­ment never ex­isted, but in­stead was re­vi­sion­ist his­tory man­u­fac­tured a decade later.” Pros­e­cu­tors also ac­cused Cosby and his de­fense team of try­ing to ob­tain “piece­meal de­ter­mi­na­tions” and of try­ing to de­lay Cosby’s trial.

The news­pa­per does not nor­mally iden­tify vic­tims of sex crimes with­out their con­sent but is us­ing Con­stand’s name be­cause she has iden­ti­fied her­self pub­licly.

AS­SO­CI­ATED PRESS

Bill Cosby de­parts af­ter a pre­trial hear­ing in his sex­ual as­sault case at the Mont­gomery County Court­house in Nor­ris­town on Sept. 6.

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