Daily Local News (West Chester, PA)
Prosecutors fight Cosby’s appeal of judge’s ruling
NORRISTOWN >> Montgomery County prosecutors have asked a state court to throw out entertainer Bill Cosby’s appeal of a judge’s ruling that rejected Cosby’s claim of a promise from a former district attorney that he would never be prosecuted for alleged sexual assault.
District Attorney Kevin R. Steele accused Cosby and his defense team of trying to obtain “piecemeal determinations” and of trying to delay Cosby’s trial.
“In sum, this criminal defendant has yet to be tried, convicted and sentenced. In fact, remarkably, he has not even had a preliminary hearing, thanks to inventive lawyering that apparently seems intent on keeping his case from a jury for as long as possible,” Steele wrote in amotion filed with the Pennsylvania Superior Court on Friday.
“Under these circumstances, defendant’s appeal should be quashed to avoid piecemeal determinations and the consequent protraction of litigation,” Steele added.
Last week, Cosby, through his lawyers, filed a direct appeal to Superior Court of county Judge Steven T. O’Neill’s Feb. 3 decisions rejecting Cosby’s request to dismiss aggravated indecent assault charges and a second request to disqualify Steele from prosecuting the case.
While Cosby’s lawyers filed the appeal under “exceptional circumstances” claims, Steele maintains Cosby does not have a right to a direct appeal at this stage and he opposes any further delay in the case.
According to Jim Koval, director of communications Administrative Office of Pennsylvania Courts, the Superior Court received and officially docketed Cosby’s appeal on Friday. Steele’s motion to quash the appeal also was docketed on Friday.
That court docket indicates that Cosby’s lawyers have until March 4 to answer a questionnaire from the court regarding the case.
It’s still unclear how Cosby’s request for state court review will affect his scheduled March 8 preliminary hearing. William Henry Cosby Jr., as his name appears on charging documents, faces charges in connectionwith the alleged sexual assault of former Temple University athletic department employee Andrea Constand at his Cheltenham home between mid-January and mid-February 2004.
The charges were lodged against Cosby, 78, before the 12-year statute of limitations to file charges expired.
As of Friday, that preliminary hearing had not been postponed.
The Superior Court must decide if itwill consider Cosby’s appeal. If it does, then the criminal proceedings against Cosby possibly could be delayed.
In his Feb. 3 order, O’Neill rejected Cosby’s claim that he had a valid non-prosecution promise from former District Attorney Bruce L. Castor Jr. in 2005.
“Mr. Castor’s agreement and promise not to prosecute Mr. Cosby and the commonwealth’s 12-year delay in bringing charges against Mr. Cosby raise issues separate and independent from the merits of the case against Mr. Cosby,” lead defense lawyer Brian J. McMonagle later wrote in the appeal to Superior Court.
McMonagle, who was joined by co-defense lawyers Christopher Tayback and Monique Pressley, argued the issues are far too important to be denied review because they relate to Cosby’s due process rights and they concern “the integrity of the judicial system which demands that the commonwealth live up to its obligation.”
In court papers, Steele responded that Cosby’s claims will not be irreparably lost if state court review is deferred until after final judgment. Steele argued Cosby’s appeal is premature since he hasn’t even had a preliminary hearing on the charges.
The defense team’s request to dismiss the charges primarily rested on the word of Castor, district attorney from 2000 to 2008, who during seven hours of testimony on Feb. 2, claimed he made a binding promise to Cosby and his then lawyer, Walter Phillips Jr., in 2005 that Cosby would never be prosecuted in connection with Constand’s allegations. Phillips has since died and Castor was the prime defense witness regarding the alleged promise.
Stopping short of calling his decision an “agreement,” Castor claimed he alone as a “sovereign” entity had the authority tomake a binding decision.
Castor testified he made the promise after becoming concerned about evidentiary issues during the 2005 investigation and determining there wasn’t enough “reliable and admissible” evidence to prosecute Cosby at that time.
The decision, Castor testified, was made to create an atmosphere that would induce Cosby to testify in Constand’s civil litigation against him and allow Constand to prevail civilly and “make a lot of money.” That decision not to prosecute, Castor implied, removed from Cosby the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath in the civil case over the course of four days between September 2005 and March 2006.