Cosby fights to suppress key prosecution evidence

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.