The last time Bill Cosby was in a Montgomery County courtroom over charges of sexual assault, his defense repeatedly claimed he and accuser Andrea Constand had a romantic relationship and were willing lovers. That included events of the night in 2004 that are in dispute.
For his retrial, the entertainer’s new legal team has launched a different defense: that Constand framed and extorted Cosby with a civil lawsuit, then won an eye-popping monetary settlement.
To make that case to the jury, defense attorneys are seeking to admit as evidence a copy of the confidential 2006 settlement agreement between Constand and Cosby, who is now 80. The terms of that deal have never been publicly revealed.
Defense lawyer Kathleen Bliss told Judge Steven O’Neill the defense team would like to put Constand on the stand and question her about the settlement and the payout — reportedly $3.5 million.
“Andrea Constand had a motive, and that was to get money by accusing someone falsely, which she, I submit, did,” Bliss said in court on Thursday. “And guess what? It paid off, just as she said it would.”
The presence of the document would be a significant distinction from last year’s criminal trial that ended in a hung jury, as both sides then agreed to not ever mention the existence of the civil suit to the jury.
If the judge allows the document to become part of the trial, prosecutors say they want to be able to discuss the private attorney negotiations that led to the out-of-court agreement.
Buttressing their version of events, defense lawyers said they will call as a witness Margo Jackson, a former Temple University colleague of Constand’s. Cosby’s defense team claimed Constand, now 44, once told Jackson about plans to fabricate a claim against a famous person to get rich.
“The motive was stated by Andrea Constand to Margo Jackson,” Bliss said. “There is no doubt about that.”
Yet without the settlement agreement, the defense’s argument would be hindered, and prosecutors say they only will accept its admission if settlement negotiations are also on the table.
For instance, prosecutor M. Stewart Ryan claimed Cosby wanted the civil settlement to include a promise from Constand to never pursue a criminal case, something Ryan said is tantamount to obstruction of justice.
Cosby had sought during pre-settlement talks to have evidence that was part of the civil suit destroyed, Ryan said, arguing that showed Cosby had the consciousness of a guilty person.
“These things are inconsistent with someone who thinks he’s innocent or thinks it’s an extortion scheme by a greedy person,” Ryan said.
O’Neill said he did not plan to rule before the start of jury selection Monday on how much, if any, of the civil settlement he will allow into the trial. He said he might not rule at all on the matter until he is presented with the issue amid the trial.
He did rule that jurors selected to hear the sex assault case against Cosby will be sequestered — as was the panel during last year’s trial.
Defense push to oust judge fails
Thursday morning, O’Neill said he would not recuse himself after Cosby’s legal team tried to have the case assigned to another judge. The entertainer’s lawyers claimed that the work of O’Neill’s wife with sexual assault victims gives an appearance of bias.
After O’Neill rejected the move by Cosby’s lawyers to boot him from the case he has presided over for more than two years, he choked up with emotion describing how his rulings have no connection to his wife Deborah O’Neill’s work as a therapist with a sexual trauma program at the University of Pennsylvania.
“It’s difficult to have her accomplishments trivialized in this partisan motion,” O’Neill said. “I am my own individual and make my own decision here. My wife’s professional decisions and what she does for a living are of no consequence,” he said. “It does not influence me one iota.”
Cosby’s legal team also pointed to a $100 GoFundMe donation seemingly made by Deborah O’Neill to a Penn social justice group that was raising money for an anti-rape event and planning a protest outside the Norristown courthouse when Cosby’s trial kicks off in April.
O’Neill said a representative from Penn made the contribution in her name, not his wife herself.
“No marital assets were used,” O’Neill said.
Before Cosby’s first trial last year, O’Neill said the entertainer’s former defense lawyer, Brian McMonagle, had a private meeting with the judge and prosecutors raising the issue of Deborah O’Neill’s employment as grounds for recusal. O’Neill said McMonagle vowed to submit a motion of recusal, but it was never filed to the court.
That conversation, the judge said, should have been conveyed to Cosby’s new legal team. But an attempt to remove O’Neill from the bench came only after he issued rulings that were unfavorable to Cosby, including one permitting five more accusers to take the stand against Cosby.
“Were you aware of my wife’s profession and what she does for a living before this court made rulings,” he asked the defense team.
Cosby’s lead lawyer, Thomas Mesereau, rejected the suggestion that he waited until the rulings came out to attempt to force O’Neill to recuse himself. New information — including the courthouse protest planned by the Penn group that received the donation in Deborah O’Neill’s name — prompted the new challenge, Mesereau said.
“We are concerned there is an appearance of bias,” Mesereau said. “This came up in a very measured, professional way.”
In legal filings, prosecutors have called Cosby’s recusal push “frivolous” and without any evidence. Under its logic, government lawyers wrote, O’Neill would have to step away from all sex crime cases just because his wife works with survivors of sexual assault trauma. Prosecutors further claimed that Cosby’s legal team does not have the right to appeal this issue because there is no “controlling question of law.”