The Reporter (Lansdale, PA)

DECISION PENDING

Judge weighs admissibil­ity of Spanish fly evidence at Bill Cosby assault trial

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

A judge has taken under advisement a request by prosecutor­s to admit Bill Cosby’s references to the aphrodisia­c Spanish fly in a 1991 book and television interview at the actor’s trial on charges he sexually assaulted a woman in 2004.

After a day-long pretrial hearing on Monday, Montgomery County Judge Steven T. O’Neill said he will rule on the matter before Cosby’s June 5 trial gets under way on charges of aggravated indecent assault in connection with his alleged contact with Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his Cheltenham home sometime between mid-January and mid-February 2004.

“The context is important here, admissions that demonstrat­e motive and intent,” Assistant District Attorney M. Stewart Ryan argued to the judge as he sought to use excerpts from Cosby’s book and television interview at trial. “You’re talking about claims by the defendant administer­ing intoxicant­s to women who were not in a particular mood.”

Referring to Cosby’s 1991 book “Childhood,” Ryan, District Attorney Kevin R. Steele and co-prosecutor Kristen Feden contend the actor recounted a memory from his youth in which he and his friends seek out “Spanish Fly, an aphrodisia­c so potent that it could have made Lena

“Taking this out of the ordinary course of business will create an opportunit­y for taint of a jury.” — Montgomery County District Attorney Kevin R. Steele

Horne surrender to Fat Albert.” Cosby, prosecutor­s alleged, wrote that he and his friends needed the aphrodisia­c because females were “never in the mood for us.”

The book excerpts, prosecutor­s maintained, also suggest Cosby “had a willingnes­s and motive to push ‘chemicals’ to obtain sex from the otherwise unwilling victim.”

Prosecutor­s also contend that in a1991 interview on “The Larry King Show,” Cosby extolled Spanish fly as a drug that “all boys from

age 11 on up to death” will be searching for.

But defense lawyers Brian J. McMonagle and Angela C. Agrusa asked the judge to keep Cosby’s Spanish fly references out of the trial.

“This is a comedy routine and not relevant. It was comedy. I don’t think it’s worthy of great debate,” McMonagle argued.

In court papers, defense lawyers argued Cosby’s remarks were a form of artistic expression and social commentary.

As Cosby, 79, left the courthouse, adoring fans, yelled, “We love you Bill, you’re innocent, man.” Cosby, carrying a cane and

holding the arm of a member of his security team, responded, “All right!”

O’Neill also addressed several jury selection issues and appeared to not favor Cosby’s request to prescreen up to 2,000 potential Pittsburgh-area jurors with an extensive questionna­ire for his sex-assault trial before they are even summoned to court.

O’Neill favors the timehonore­d traditiona­l procedure under which a standard court-approved questionna­ire is mailed to potential jurors before they are summoned to court. O’Neill said more extensive questionin­g of jurors, with more specific questions, can occur after they arrive in court for in-person questionin­g.

McMonagle and Agrusa originally proposed a jury selection protocol that included mailing questionna­ires to up to 2,000 prospectiv­e jurors, before in-person jury selection began, in an effort to weed out those who may have already

formed opinions regarding Cosby’s guilt or innocence. Agrusa argued Cosby’s “celebrity,” the high-profile nature of the case and media attention created unique circumstan­ces.

“Mr. Cosby is a celebrity and world-renowned. He has been entertaini­ng audiences for half a century, His exposure is tremendous,” Agrusa argued. “You cannot walk into a grocery store, a convenienc­e store or a minimart without seeing headlines, not just in the tabloids but in the mainstream news and print…Mr. Cosby is not asking for special treatment.”

Simply asking jurors in a traditiona­l questionna­ire if they can be impartial is not sufficient, Agrusa argued.

“You have to vet it…to reveal hidden biases,” Agrusa said.

But Steele suggested Cosby was seeking special treatment and he argued the standard and well-establishe­d process of jury selection already in place in

Allegheny and Montgomery counties would be adequate. Steele said jurors can be vetted more extensivel­y after they arrive in court for in-person questionin­g.

“Taking this out of the ordinary course of business will create an opportunit­y for taint of a jury,” argued Steele, adding allowing jurors to answer a more extensive questionna­ire at home before they come to court would allow them to get the input of others in their household and help them devise ways to “get out of jury duty.” “It provides too much of an opportunit­y for potential taint.”

O’Neill revealed about 125 potential jurors could be screened each day and he said he is seeking a jury of 12 and six alternate jurors for the trial. O’Neill also suggested the selection process get underway as early as May 22 if Allegheny County can accommodat­e the plan.

“It appears we will be able to go out early,” said O’Neill, adding an exact

date will be finalized in the next few days.

On March 13, the Pennsylvan­ia Supreme Court selected Allegheny County as the site for jury selection. The state’s highest court was responding to O’Neill’s Feb. 27 request that another county be chosen for the jury selection process.

When jury selection does commence, Cosby and his security entourage, county prosecutor­s, defense lawyers, O’Neill and likely a contingent of the judge’s staff will travel to Pittsburgh to select the panel.

Those Pittsburgh-area citizens selected to weigh Cosby’s fate will then be transporte­d to Montgomery County and sequestere­d in an area hotel for the duration of the trial, which lawyers implied on Monday will last at least two weeks.

Cosby currently remains free on 10 percent of $1 million bail. If convicted of the charges at trial, the former sitcom star faces a possible maximum sentence of 15 to 30 years in prison.

“You cannot walk into a grocery store, a convenienc­e store or a mini-mart without seeing headlines, not just in the tabloids but in the mainstream news and print… Mr. Cosby is not asking for special treatment.” — defense lawyer Angela C. Agrusa

 ?? ASSOCIATED PRESS ?? Bill Cosby is escorted into Montgomery County Courtroom A in Norristown for a pretrail hearing Monday.
ASSOCIATED PRESS Bill Cosby is escorted into Montgomery County Courtroom A in Norristown for a pretrail hearing Monday.
 ?? ASSOCIATED PRESS ?? Bill Cosby leaves Montgomery County Courtroom A for a lunch break Monday during a pretrail hearing in his sexual assault case in Norristown.
ASSOCIATED PRESS Bill Cosby leaves Montgomery County Courtroom A for a lunch break Monday during a pretrail hearing in his sexual assault case in Norristown.

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