Bill Cosby loses lat­est bid to dis­miss sex as­sault charges

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

NORRISTOWN >> En­ter­tainer Bill Cosby, who claims his eye­sight has de­clined and he’s no longer able to as­sist in his de­fense, has lost his bid to have sex as­sault charges dis­missed against him on grounds his due process rights were vi­o­lated by the 11-year de­lay in his ar­rest.

In a one-page or­der is­sued Wed­nes­day, Mont­gomery County Judge Steven T. O’Neill de­nied Cosby’s re­quest for a dis­missal of charges of ag­gra­vated in­de­cent as­sault, which were filed against Cosby in De­cem­ber 2015 in con­nec­tion with his al­leged 2004 as­sault of An­drea Con­stand, a for­mer Tem­ple Univer­sity ath­letic depart­ment em­ployee, at his Chel­tenham man­sion. The judge did not elab­o­rate on the rea­sons for his de­ci­sion, which was based on lawyers’ ar­gu­ments he heard dur­ing pre­trial hear­ings Nov. 1 and 2.

The judge also de­nied Cosby’s re­quest to hold com­pe­tency hear­ings for 13 other women whom pros­e­cu­tors want to call as al­leged prior ac­cusers at the en­ter­tainer’s trial, which is sched­uled to com­mence next June. A de­fense re­quest that the judge hold pri­vate hear­ings to weigh the ve­rac­ity and sig­nif­i­cance of the other al­leged ac­cusers’ claims also was de­nied.

The rul­ings were con­sid­ered sig­nif­i­cant wins for Dis­trict At­tor­ney Kevin R. Steele and co-pros­e­cu­tors M. Ste­wart Ryan, Kris­ten Fe­den and Robert Falin who op­posed all of Cosby’s re­quests.

“The judge’s rul­ings to­day get us one step closer to pre­sent­ing our ev­i­dence at trial and fur­thers our pur­suit of jus­tice for the vic­tim in our case,” Steele re­acted to the judge’s rul­ings.

The judge still must de­cide if Cosby’s al­leged in­crim­i­nat­ing tes-

ti­m­ony dur­ing a civil de­po­si­tion can be heard by the jury at the crim­i­nal trial. O’Neill in­di­cated he will rule on that mat­ter be­fore an­other pre­trial hear­ing is held on Dec. 13.

Dur­ing hear­ings now sched­uled for Dec. 13 and 14, the judge also will de­cide if 13 other al­leged ac­cusers can tes­tify at the crim­i­nal trial. It’s un­clear if any of those women will be called by pros­e­cu­tors to tes­tify at the next pre­trial hear­ing.

In their re­quest for a dis­missal of the charges on grounds Cosby’s due process rights were vi­o­lated, de­fense lawyers Brian J. McMona­gle and An­gela Agrusa claimed that with death, mem­ory loss and fad­ing eye­sight, pros­e­cu­tors have gained a strate­gi­cal ad­van­tage in the al­leged sex­ual as­sault case against Cosby. Cosby’s eye­sight has de­clined dur­ing the 11-year “un­jus­ti­fied de­lay” in fil­ing charges against him and he’s no longer able to as­sist in his de­fense, the lawyers claimed.

Cosby has “end stage glau­coma” and is “legally blind,” his lawyers claimed in papers filed Wed­nes­day, pro­vid­ing more spe­cific de­tails about the en­ter­tainer’s eye­sight. Cosby, 79, has no light per­cep­tion in his right eye and can only sense move­ment or hand mo­tions in the tem­po­ral re­gion of his left eye, McMona­gle and Agrusa main­tained.

“In­deed the sever­ity of the con­di­tion is such that he was el­i­gi­ble and is now reg­is­tered with the Mas­sachusetts Com­mis­sion for the Blind,” McMona­gle and Agrusa wrote. “The same tasks that were taken for granted 11 years ago are un­think­able to­day.”

Cosby re­port­edly has an­other res­i­dence in Mas­sachusetts.

The lawyers had sub­mit­ted to the judge a sup­port­ing let­ter from the Mas­sachusetts Of­fice of Health and Hu­man Ser­vices Com­mis­sion for the Blind. The Mas­sachusetts agency pro­vides re­ha­bil­i­ta­tion and so­cial ser­vices to in­di­vid­u­als who are legally blind, ac­cord­ing to court papers.

De­fense lawyers ar­gued Con­stand’s al­le­ga­tions against Cosby first sur­faced in Jan­uary 2005 and he wasn’t charged un­til De­cem­ber 2015 and that that pre-ar­rest de­lay con­sti­tuted a de­nial of due process un­der the Penn­syl­va­nia and U.S. con­sti­tu­tions.

Ar­gusa ar­gued 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, Con­stand, in 2004. Cosby’s blind­ness de­prives him of his right un­der Penn­syl­va­nia law to rely on and use any writ­ings or other aids to re­fresh his rec­ol­lec­tion of past events, his lawyers said.

“This right is fun­da­men­tal to his de­fense. Be­cause of the com­mon­wealth’s pre-ar­rest de­lay, Mr. Cosby has lost this right be­cause he has lost one of the most crit­i­cal trig­gers of mem­ory, his sight,” McMona­gle and Agrusa wrote Wed­nes­day.

Agrusa and McMona­gle 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. 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,” McMona­gle ar­gued.

But pros­e­cu­tors ques­tioned that a promise of im­mu­nity ever ex­isted and Falin ar­gued there were “proper rea­sons” for the 11-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 ar­gued. “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.”

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

Cosby faces a June 5, 2017, trial in con­nec­tion with al­le­ga­tions he had inappropriate sex­ual con­tact with Con­stand at his Chel­tenham home be­tween mid-Jan­uary and mid-Fe­bru­ary 2004.

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, Cosby, an en­ter­tain­ment icon who re­mains free on 10 per­cent of $1 mil­lion bail, faces a pos­si­ble max­i­mum sen­tence of 15 to 30 years in prison.

THE AS­SO­CI­ATED PRESS

Bill Cosby leaves after a hear­ing in his sex­ual as­sault case at the Mont­gomery County Court­house in Norristown on Nov. 1.

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