Cosby fights to sup­press key prose­cu­tion ev­i­dence

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

NORRISTOWN >> Bill Cosby’s al­leged in­crim­i­nat­ing tes­ti­mony dur­ing a civil de­po­si­tion was at the cen­ter of a pre­trial bat­tle at which his lawyers are at­tempt­ing to pre­vent those words from ever be­ing heard by a jury at his sex­ual as­sault trial.

“This de­po­si­tion has to be sup­pressed,” de­fense lawyer Brian J. McMona­gle de­clared in Mont­gomery County Court on Tues­day, re­fer­ring to tes­ti­mony Cosby gave dur­ing a de­po­si­tion con­nected with a 2005 civil suit brought against him by An­drea Con­stand, the for­mer Tem­ple Univer­sity ath­letic depart­ment em­ployee who has ac­cused Cosby of drug­ging and sex­u­ally as­sault­ing her at his Chel­tenham man­sion in 2004.

In that de­po­si­tion, Cosby gave dam­ag­ing tes­ti­mony, al­legedly ad­mit­ting that in the past he ob­tained Quaaludes to give to women with whom he wanted to have sex. Prose­cu­tors con­tend Cosby also ad­mit­ted for the first time to de­vel­op­ing a ro­man­tic in­ter­est in Con­stand when he saw her at a Tem­ple bas­ket­ball game and to hav­ing sex­ual con­tact with Con­stand.

While prose­cu­tors con­tend the in­crim­i­nat­ing tes­ti­mony is ad­mis­si­ble, McMona­gle ar­gued Cosby re­lied on a so-called 2005 “non-prose­cu­tion prom­ise” pro­vided by for­mer District At­tor­ney Bruce L. Cas­tor Jr. when he agreed to tes­tify in the civil suit brought by Con­stand and there­fore any ev­i­dence de­rived from his de­po­si­tion can­not be used against him.

“When you give your word, you got to keep it. When you give your prom­ise, you got to keep it. I don’t want district at­tor­neys mak­ing prom­ises they won’t later keep. We know that Mr. Cas­tor made the prom­ise,” McMona­gle ar­gued, re­fer­ring to tes­ti­mony Cas­tor gave in Fe­bru­ary dur­ing a pre­vi­ous pre­trial hear­ing. “This case, un­for­tu­nately, in­volves a sit­u­a­tion where some­body else gave their word, not Mr. Steele, and Mr. Steele doesn’t like it.”

But Steele and co-prose­cu­tor M. Ste­wart Ryan con­tend there was no pre­vi­ous, valid non-prose­cu­tion prom­ise and that Cas­tor did not prom­ise Cosby that he would never be pros­e­cuted. Prose­cu­tors con­tend that even if Cas­tor had made such a rep­re­sen­ta­tion, and even if Cosby had re­lied on it, his reliance was un­rea­son­able. Ryan sug­gested that over the years in email mes­sages, press re­leases and tes­ti­mony, Cas­tor made in­con­sis­tent state­ments re­gard­ing the al­leged non-prose­cu­tion prom­ise. Ryan asked Judge Steven T. O’Neill to assess Cas­tor’s cred­i­bil­ity.

O’Neill did not rule on the is­sue, tak­ing the mat­ter un­der ad­vise­ment. O’Neill made clear he has not seen the con­tents of the de­po­si­tion.

Cosby, 79, faces a June 5, 2017 trial on charges of ag-

gra­vated in­de­cent as­sault in con­nec­tion with his al­leged con­tact with Con­stand af­ter ply­ing her with blue pills and wine at his Chel­tenham home some­time be­tween mid-Jan­uary and mid-Fe­bru­ary 2004.

Cosby has sug­gested the con­tact was con­sen­sual.

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.

It’s not the first time the de­fense strat­egy has hinged on the so-called “non-prose­cu­tion prom­ise.”

In Fe­bru­ary, McMona­gle raised the al­leged 2005 Cas­tor prom­ise to try to have the charges dis­missed against Cosby, but O’Neill re­jected that ar­gu­ment then. Now, the de­fense is re­ly­ing on the al­leged prom­ise to pre­vent Cosby’s de­po­si­tion tes­ti­mony from be­ing used as pros­e­cu­to­rial ev­i­dence at trial.

Cas­tor, district at­tor­ney from 2000 to 2008, pre­vi­ously claimed there wasn’t enough “re­li­able and ad­mis­si­ble” ev­i­dence to crim­i­nally charge Cosby in 2005.

Cosby’s lawyers con­tend the 2005 non-prose­cu­tion prom­ise was made for the ex­press pur­pose of in­duc­ing Cosby to tes­tify in Con­stand’s civil lit­i­ga­tion against him, re­mov­ing from him the abil­ity to claim his Fifth Amend­ment pro­tec­tion against self-in­crim­i­na­tion, “thus forc­ing him to sit for a de­po­si­tion un­der oath in a civil case” in 2006.

De­fense lawyers claim Steele “re­pu­di­ated the agree­ment” and based the crim­i­nal charges lodged against Cosby in De­cem­ber on tes­ti­mony Cosby gave dur­ing the de­po­si­tion con­nected to the civil suit.

Cosby was de­posed in con­nec­tion with the law­suit over four days in Septem­ber 2005 and March 2006. The suit ul­ti­mately set­tled for an undis­closed amount on July 13, 2006.

Prose­cu­tors re­opened the crim­i­nal in­ves­ti­ga­tion in July 2015 af­ter por­tions of Cosby’s de­po­si­tion con­nected to the civil suit were un­sealed by a fed­eral judge and his al­leged dam­ag­ing tes­ti­mony was ex­posed. 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.

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.

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