Cosby says blindness hinders defense
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.
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.