Bill Cosby’s attorneys made their case on Tuesday for limiting what the jury in his June trial can hear, the beginning of a number of scheduled hearings in a Norristown, Pennsylvania, courtroom concerning the scope of evidence.
The first dispute centered on whether the jury should be able to hear portions of a deposition the entertainer gave as part of a federal civil lawsuit in which Cosby said he provided former Temple University employee Andrea Constand pills and wine before sexual contact. He also said under oath that he had obtained Quaaludes with the intent of giving them to women he wanted to seduce.
The back-and-forth might sound familiar; it harkened back to an argument Cosby’s attorneys made in February when they unsuccessfully pushed to have the three counts of aggravated indecent assault tossed: Did the filing of charges represent a broken promise?
“If you give your word, you better keep it,” defense attorney Brian McMonagle said. “I think I can say without hesitation, and I say this from my heart, that every district attorney that I have dealt with in 30 years has done that.”
Former Montgomery County District Attorney Bruce Castor’s 2005 decision not to charge Cosby was delivered publicly by way of press release, saying there was insufficient evidence to prove beyond a reasonable doubt that Cosby sexually assaulted Constand. There was also a professed verbal agreement to never charge Cosby.
Castor believed that would preserve the case for civil court. Knowing he wouldn’t be facing charges, the thinking went, Cosby would not invoke his Fifth Amendment right to remain silent and avoid self-incrimination. Constand settled her civil suit under confidential terms in 2006.
Non-prosecution agreements, or granting some kind of immunity from charges, are usually written and entered with the court. But this promise did not exist in writing, and Cosby’s former defense attorney, Walter Phillips, died last year. McMonagle has maintained a verbal promise was made to Phillips.
“We are now in a quandary of a lifetime because the best witness on this issue is dead,” McMonagle said.
Yet Montgomery County Assistant District Attorney M. Stewart Ryan said Castor’s statements about the non-prosecution agreement have been inconsistent.
“Is it a promise to never charge this man, or is it a promise that he will sit for a civil deposition?” Ryan said. “It matters in assessing his credibility.”
McMonagle admitted that the oral agreement was a bad idea, saying he wouldn’t do it as a district attorney — and venturing to say that current county District Attorney Kevin Steele wouldn’t do it.
“On the flip side of it were good lawyers, and good lawyers relied on that promise,” McMonagle said.
Hearings continue Wednesday
County Judge Steven O’Neill did not rule on whether the deposition will be suppressed, though he at times sounded incredulous about the validity of the verbal agreement.
“Nobody sought clarification or verification when Cosby took civil depositions,” he said.
O’Neill took considerable time at the end of the hearing combing through motions and asking McMonagle and Angela Agrusa, another Cosby defense attorney, about the lack of citations. This came after a break during which both sides were supposed to come to an agreement about some basic facts in the case.
“I’m not going to accept that as a fact. I don’t know what that is,” said O’Neill asking about a news story about Cosby cited in a defense motion. “That’s not in my record. I don’t have it,” he said of another media reference.
O’Neill said arguments on a motion to dismiss the charges based on alleged due process rights violations will occur Wednesday. And after that, the court will hear from both sides about whether 13 other women who accuse Cosby of sexual misconduct should be allowed to take the stand during Constand’s trial.
“It’s going to be for the court to decide whether any, or all, or none, of the 13 prior bad act witnesses will be permitted testify,” said Gloria Allred, an attorney representing some of the other accusers, after Tuesday’s hearing.
The 79-year-old Cosby has been charged in connection with a 2004 encounter at his Cheltenham home with Constand. She said she was drugged and molested; Cosby said they engaged in consensual sex acts.