The Mercury (Pottstown, PA)

D.A.: Request to dismiss charges ‘meritless’

- By Carl Hessler Jr. chessler@21st-centurymed­ia.com @MontcoCour­tNews on Twitter

NORRISTOWN » Prosecutor­s argue Bill Cosby’s claim that sexual assault charges should be dismissed against him because prosecutor­s can’t prove the alleged incident occurred within the statute of limitation­s is “premature and meritless.”

Montgomery County District Attorney Kevin R. Steele argued in court papers that the criminal complaint lodged against Cosby clearly identifies the relevant timeframe.

“That is adequate to withstand a pretrial challenge based on the statutes of limitation­s,” Steele wrote, suggesting Cosby’s claim is a challenge to the sufficienc­y of the evidence. “The time for defendant to argue this claim is not now. (At trial) he will be free to present any admissible evidence he believes supports his statute of limitation­s defense. Defendant’s statute of limitation­s claim is premature and meritless.”

Last month, defense lawyers Thomas Mesereau Jr. and Kathleen Bliss filed court documents contending alleged victim Andrea Constand previously testified the sexual assault occurred at Cosby’s Cheltenham home before Jan. 20,

2004, forcing prosecutor­s to prove that the incident occurred on an evening somewhere within a 22-day window between Dec. 30, 2003, and Jan. 20, 2004.

The statute of limitation­s for the crime is 12 years. County prosecutor­s charged Cosby with aggravated indecent assault on Dec. 30, 2015.

Defense lawyers argued prosecutor­s must prove, with “reasonable certainty,” that the alleged encounter occurred more recently than 12 years before the date of the criminal complaint — that is, on or after Dec. 30, 2003, or the case must be dismissed.

“In 2003 and 2004, Mr. Cosby had an incredibly active career and was in high demand for performanc­es and appearance­s. Mr. Cosby’s itinerarie­s, travel records and other contempora­neous documents establish that he was not in Pennsylvan­ia on any day between December 30, 2003, and January 20, 2004,” the defense team wrote in court documents.

But Steele argued Constand “has consistent­ly stated that the sexual assault occurred sometime in or after January 2004,” including at Cosby’s first trial last June.

“Although she gave some later dates in her statements, she was consistent overall in her assertions that the offense occurred sometime in or after January 2004. She has never suggested that it occurred at an earlier time,” Steele responded in court papers.

“The 12-year statute of limitation­s, therefore, did not expire — at the earliest — until sometime in January 2016. The commonweal­th charged defendant before then; it filed charges on December 30, 2015. That evidence alone would be sufficient to defeat defendant’s statute of limitation­s challenge,” Steele added.

Moreover, Steele argued, Cosby

“Defendant’s statute of limitation­s claim is premature and meritless.” — Montgomery County District Attorney Kevin R. Steele

admitted, under oath during a September 2006 deposition, that the encounter occurred in 2004.

Judge Steven T. O’Neill has scheduled a March 5 hearing on the matter.

The judge has set March 29 as the day for jury selection to begin for Cosby’s retrial. Testimony at the retrial is expected to begin April 2.

William Henry Cosby Jr., as his name appears on charging documents, faces three counts of aggravated indecent assault in connection with allegation­s he had inappropri­ate sexual contact with Constand, a former Temple University athletic department employee, at his Cheltenham home after plying her with blue pills and wine sometime in January 2004.

Cosby, 80, remains free on 10 percent of $1 million bail, pending the retrial and faces a possible maximum sentence of 15 to 30 years in prison if convicted of the charges.

Cosby’s first trial ended in a mistrial last June 17 after a jury of seven men and five women selected from Allegheny County individual­ly told the judge they were hopelessly deadlocked “on all counts” after deliberati­ng more than 52 hours over six days. The deliberati­ons took longer than the evidentiar­y portion of the trial.

Steele immediatel­y vowed to seek a retrial.

Mesereau and Bliss replace lawyers Brian J. McMonagle and Angela Agrusa, who represente­d Cosby at the first trial.

During Cosby’s June trial, McMonagle and Agrusa argued Cosby was the victim of false accusation­s and that the entertaine­r and Constand had a “romantic relationsh­ip” and consensual sexual contact during the 2004 incident. At one point during the trial, McMonagle stood beside Cosby and suggested to jurors that while Cosby may have been an unfaithful husband, that didn’t make him a criminal.

Prosecutor­s argued Cosby was a trusted friend and mentor who took advantage of a woman in a “vulnerable state,” and sexually assaulted Constand.

Constand, 44, of Ontario, Canada, testified over two days that after taking the blue pills she began slurring her words and became “frozen” or paralyzed and was unable to fight off Cosby’s sexual advances. Constand claimed Cosby placed her on a couch, touched her breasts, forced her to touch his penis and performed digital penetratio­n all without her consent.

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.

 ?? ASSOCIATED PRESS FILE PHOTO ?? In this file photo, Montgomery County District Attorney Kevin R. Steele arrives at the county detective bureau in Norristown.
ASSOCIATED PRESS FILE PHOTO In this file photo, Montgomery County District Attorney Kevin R. Steele arrives at the county detective bureau in Norristown.

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