Cosby says blind­ness hin­ders de­fense

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

En­ter­tainer Bill Cosby has been prej­u­diced by the 10-year de­lay in his ar­rest on sex­ual as­sault charges be­cause his eye­sight has de­clined dur­ing that time and he’s no longer able to as­sist in his de­fense, his lawyers ar­gued to a judge Wed­nes­day.

“He is phys­i­cally im­paired. He can­not see,” de­fense lawyer An­gela C. Agrusa ar­gued in Mont­gomery County Court as she and co-de­fense lawyer Brian J. McMona­gle tried to con­vince a judge to dis­miss charges of ag­gra­vated in­de­cent as­sault against the 79-year-old actor and co­me­dian.

Agrusa pre­sented the judge with a state­ment from a doc­tor who of­fered an opin­ion that Cosby is “legally blind.”

Agrusa asked Judge Steven T. O’Neill to find that Cosby’s “due process rights were vi­o­lated” by the pros­e­cu­tion’s “un­jus­ti­fied de­lay” in fil­ing charges against Cosby. The al­le­ga­tions against Cosby, Agrusa ar­gued, first sur­faced in Jan­uary 2005 and he wasn’t charged un­til De­cem­ber 2015, and that pre-ar­rest de­lay con­sti­tutes a de­nial of due process un­der the Penn­syl­va­nia and U.S. con­sti­tu­tions.

Cosby came to court walk­ing with the aid of a cane and ap­peared to be guided by a mem­ber of his se­cu­rity team, whose arm he clutched. Dur­ing the hear­ing, he smiled and ap­peared to be ac­tively in­volved in dis­cus­sions with his lawyers.

Ar­gusa said the ram­i­fi­ca­tions of Cosby’s blind­ness are ap­par­ent when it comes to the 13 other women who ac­cused Cosby of un­charged sex­ual mis­con­duct from the 1970s through the 1990s and who pros­e­cu­tors say should be per­mit­ted to tes­tify at Cosby’s trial on charges he sex­u­ally as­saulted one woman, An­drea Con­stand, at his Chel­tenham man­sion in 2004.

“Mr. Cosby can­not look at a pho­to­graph. He can’t help his coun­sel iden­tify who these wit­nesses are. The very foun­da­tion of that al­leged ev­i­dence can­not be de­fended by him,” Agrusa ar­gued. “We can’t test his mem­ory be­cause he can­not see. He’s 79 years old. He may have mem­ory is­sues too.”

While pros­e­cu­tors didn’t ob­ject to the uniden­ti­fied doc­tor’s state­ment from be­ing sub­mit­ted as ev­i­dence, they in­di­cated they aren’t nec­es­sar­ily ac­cept­ing it.

“Mr. Cosby can­not look at a pho­to­graph. He can’t help his coun­sel iden­tify who these wit­nesses are. The very foun­da­tion of that al­leged ev­i­dence can­not be de­fended by him. We can’t test his mem­ory be­cause he can­not see. He’s 79 years old. He may have mem­ory is­sues too.” — An­gela C. Agrusa, de­fense lawyer

“I’m not sure how much stock you can put in that. We know noth­ing about that doc­tor. I don’t even know what to make of that,” said Deputy Dis­trict At­tor­ney Robert Falin, who urged the judge to deny Cosby’s re­quest for a dis­missal of the charges.

O’Neill took the re­quest un­der ad­vise­ment and likely will rule be­fore Cosby’s next sched­uled round of pre­trial hear­ings in De­cem­ber.

Agrusa also claimed 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 Con­stand.

“What is gone be­cause of the de­lay is a cru­cial piece of ev­i­dence,” said Agrusa, main­tain­ing Phillips, who died in Fe­bru­ary 2015, was “the sin­gle most im­por­tant” de­fense wit­ness needed to cor­rob­o­rate the prom­ise and is not avail­able be­cause of the pros­e­cu­tion’s de­lay and “neg­li­gence.”

Falin ques­tioned that a prom­ise of im­mu­nity ever ex­isted and ar­gued there were other wit­nesses, in­clud­ing Cosby, the de­fense could have called to cor­rob­o­rate Cas­tor’s tes­ti­mony.

“Penn­syl­va­nia law makes clear if there are other sources for lost ev­i­dence then a de­fen­dant can’t claim prej­u­dice,” ar­gued Falin, who is as­sist­ing Dis­trict At­tor­ney Kevin R. Steele,

adding the no­tion that such an al­leged prom­ise of im­mu­nity would have gone un­doc­u­mented by ex­pe­ri­enced lawyers was “so far­fetched.”

Falin ar­gued there were “proper rea­sons” for the 10-year de­lay in charg­ing Cosby.

Falin 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 cer­tain sex­ual con­tact with Con­stand.

“That was a sig­nif­i­cant ad­mis­sion. That was ev­i­dence that wasn’t avail­able be­fore. Any rea­son­able pros­e­cu­tor would have taken another look at the case and that’s what we did,” Falin said. “Here, the proper rea­son for de­lay was the dis­cov­ery of new in­for­ma­tion.”

Falin ar­gued other women also came for­ward be­tween 2005 and 2014 to ac­cuse Cosby of in­ap­pro­pri­ate sex­ual con­duct and pros­e­cu­tors have sought the judge’s per­mis­sion to al­low those women to tes­tify at Cosby’s trial un­der rules gov­ern­ing so-called “prior bad acts” to prove Cosby en­gaged in a “com­mon scheme or plan.”

“Mr. Cosby has just ex­pe­ri­enced a cy­clone of prej­u­dice. He does not have the abil­ity to de­fend him­self. When a de­fen­dant is prej­u­diced by the government’s de­lay in charg­ing and there is no valid rea­son for the de­lay then the court is man­dated to dis­miss the charges.” — An­gela C. Agrusa, de­fense lawyer

But Agrusa and McMona­gle have asked the judge to pre­vent the other 13 ac­cusers from tes­ti­fy­ing at Cosby’s trial, claim­ing the pas­sage of time and Cosby’s fad­ing eye­sight pre­vent him from be­ing able to de­fend against those ac­cu­sa­tions, some of which date back to the 1960s. O’Neill will hold ad­di­tional hear­ings next month and de­cide then whether any of those women will be per­mit­ted to tes­tify.

Pros­e­cu­tors have not iden­ti­fied the women by name in court fil­ings. The hear­ing abruptly turned heated when Steele lashed out at de­fense lawyers for pub­licly nam­ing the women when they re­sponded in court pa­pers to Steele’s re­quest to al­low the women to tes­tify.

“It’s another at­tempt to in­tim­i­date wit­nesses. Some of these peo­ple have not been in the press and (the de­fense) iden­ti­fied them and it’s wrong,” Steele bel­lowed.

“I’m sur­prised Mr. Steele went there to­day. No one has done any­thing in­ap­pro­pri­ate. We didn’t make an un­fet­tered dis­clo­sure of any­thing,” McMona­gle, his voice raised, re­sponded, claim­ing many of the 13 women have al­ready held press con­fer­ences on their own.

Agrusa ar­gued some of the in­for­ma­tion pros­e­cu­tors main­tain was “new in­for­ma­tion” was ac­tu­ally avail­able in 2005 when the de­ci­sion was made by Cas­tor not to pros­e­cute Cosby.

“Mr. Cosby has just ex­pe­ri­enced a cy­clone of prej­u­dice. He does not have the abil­ity to de­fend him­self,” Agrusa claimed. “When a de­fen­dant is prej­u­diced by the government’s de­lay in charg­ing and there is no valid rea­son for the de­lay then the court is man­dated to dis­miss the charges.”

Falin said Cosby was charged within the 12-year statute of lim­i­ta­tions for the crime, so Cosby’s pre-ar­rest de­lay claim fails.

“The de­fen­dant’s claim is mer­it­less. His bur­den is to prove ac­tual prej­u­dice. He has failed to do that,” Falin ar­gued.

Cosby faces a June 5, 2017 trial 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. How­ever, the judge in­di­cated Wed­nes­day that the trial date could be moved up if all pre­trial is­sues are wrapped up next month.

AS­SO­CI­ATED PRESS

Bill Cosby, cen­ter, leaves the Mont­gomery County Court­house af­ter a hear­ing in his sex­ual as­sault case on Wed­nes­day in Norristown. Cosby’s eye­sight has de­te­ri­o­rated to the point where he can­not iden­tify his ac­cusers in pho­to­graphs or oth­er­wise help with his de­fense, his lawyers said Wed­nes­day as they waged a mul­ti­pronged ef­fort to get the sex­ual as­sault case against the 79-year-old co­me­dian thrown out.

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