Defense questions competency of Cosby accusers
Lawyers for Bill Cosby want a judge to hold competency hearings for the 13 women prosecutors want to call as alleged prior accusers at the entertainer’s trial on charges he sexually assaulted one woman at his Cheltenham home in 2004.
Defense lawyer Brian J. McMonagle revealed in papers filed Monday in Montgomery County Court that the defense retained “an exceptionally decorated psychologist at the forefront of memory scholarship” to review materials in Cosby’s case and concluded that there is evidence that, for a number of reasons, the memories of the prosecution’s proposed witnesses “have been tainted in the decades since their alleged assaults occurred.”
“First, the long period of time between the alleged assaults and the present creates a high likelihood that the proposed witnesses’ testimony will be inaccurate,” McMonagle wrote. “Second, there is evidence that the pervasiveness of media coverage surrounding Mr. Cosby and his accusers
creates a high likelihood of tainting or supplanting the proposed witnesses’ testimony.
“Third, there is evidence that the interactions and apparent closeness of the personal relationships among the proposed witnesses may have tainted or supplanted their recollections,” McMonagle added. “Fourth, there is evidence that suggestive questioning by the media, lawyers and law enforcement has tainted the witnesses’ memories.”
McMonagle and co-defense lawyer Angela C. Agrusa added “the various alterations in the proposed witnesses’ stories are evidence of memory taint.”
Under state law, McMonagle argued, when it can be demonstrated that a witness’s memory has been affected so that their recall of events may not be dependable, then a judge has the responsibility to investigate the legitimacy of the allegations.
McMonagle claimed that the defense psychologist’s opinions explicitly state that “tainted memories not only can occur in adults, but also that they likely have occurred with respect to the proposed witnesses’ testimony” that prosecutors wish to introduce at trial.
Judge Steven T. O’Neill begins holding pretrial hearings on Tuesday to determine what evidence is admissible when Cosby’s trial gets underway next summer. At that time, District Attorney Kevin R. Steele will have the opportunity to respond to the defense request for competency hearings for the proposed prosecution witnesses.
It’s unclear if McMonagle will call upon the defense psychologist to testify at the pretrial hearings this week.
Steele has asked the judge to allow 13 unidentified women, who allegedly were victims of Cosby’s uncharged sexual misconduct from the 1970s through the 1990s, to testify at Cosby’s trial on charges he sexually assaulted one woman, Andrea Constand, at his Cheltenham mansion in 2004. Steele argues the testimony is relevant “to establish a common plan, scheme or design” for the jury.
But McMonagle claims the prosecution is attempting “to bolster its weak case” with the testimony of the 13 other women and that such testimony would be unfairly prejudicial to Cosby and should not be permitted. McMonagle argues due to the passage of time, “Cosby cannot even prove where he was at the time of many of the alleged incidents” and that the accusers’ allegations are “vague.”
Cosby, 79, faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with his alleged contact with Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his Cheltenham home sometime between mid-January and mid-February 2004.
The case represents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime despite allegations from dozens of women who claimed they were assaulted by the entertainer. Cosby has been named in several civil lawsuits filed by women who claim he violated them too.
Cosby claims he was prejudiced by a decade-old delay in bringing sexual assault charges against him and that the charges should be thrown out.
But Steele has said prosecutors reopened the criminal investigation in July 2015 after segments of Cosby’s deposition connected to a 2005 civil suit brought against him by Constand were unsealed by a federal judge. In that deposition, Cosby gave damaging testimony, allegedly admitting he obtained Quaaludes to give to women with whom he wanted to have sex. Prosecutors contend Cosby also admitted for the first time that he had sexual contact with Constand. Cosby has suggested it was consensual contact.
“The release of these depositions generated a great deal of publicity, as well as a number of public claims by women who alleged Cosby had assaulted them under circumstances similar to those reported by (Constand),” prosecutors alleged in the arrest affidavit.
Legal insiders believe the key to the prosecution’s case against Cosby is the admissibility of evidence involving alleged victims who came forward after Constand’s allegations.
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.
If convicted of the charges at trial, William Henry Cosby Jr., as his name appears on charging documents, faces a possible maximum sentence of 15 to 30 years in prison. He remains free on 10 percent of $1 million bail, pending trial.
Brian McMonagle, left, one of Bill Cosby’s attorneys, walks off the elevator in front of Bill Cosby, in the background, as they arrive for their pre-trial conference in Courtroom A at the Montgomery County Courthouse in Norristown on Sept. 6.