Bill Cosby loses latest bid to dismiss sex assault charges
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.
Bill Cosby leaves after a hearing in his sexual assault case at the Montgomery County Courthouse in Norristown on Nov. 1.