De­fense ques­tions com­pe­tency of Cosby ac­cusers

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

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.

AS­SO­CI­ATED PRESS FILE PHOTO

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.

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