NORRISTOWN, Pa. — It will be at least eight months at the earliest before Bill Cosby is brought to trial on sex-assault charges, and in the meantime teams of lawyers are battling over crucial evidence issues that both sides say could make a difference in whether that trial is fair or not.
The latest pre-trial hearing in the case got underway here Tuesday before Judge Steven O'Neill, who began hearing arguments from prosecutors and defense attorneys on Cosby's latest effort to have the case dismissed.
Cosby, 79, assisted by a cane and his aides, arrived in court just before 8:45 a.m., dressed in a black suit. He is charged with three counts of aggravated sexual assault in connection with a 2004 encounter at his nearby home with former Temple University employee Andrea Constand.
The hearing, expected to span two days, brought yet another slew of media vans and reporters to Norristown again, as well as local residents hoping to catch a glimpse of Cosby.
After a lunch break, the lawyers retreated to conference rooms to argue about what can be admitted into court as fact about Cosby's motion regarding the 12-year delay before he was charged, which includes his assertion that he is the victim of racial bias.
The defense and prosecution teams need to agree on information that may have been included in the prosecution’s discovery material but never entered into public record with the court. The court is in recess for the time being.
Earlier, the initial focus of Tuesday's hearing was a deposition in a 2005 civil suit by Constand, later settled, in which Cosby agreed to be deposed in exchange for a promise by then-District Attorney Bruce Castor to not prosecute Cosby on criminal charges. Cosby's lawyers, led by Brian McMonagle, argued that promise should still be honored.
The new district attorney, Kevin Steele (who made Cosby an issue in his election campaign last year and then filed charges right before the Pennsylvania statute of limitations was due to expire), wants to introduce the deposition — in which Cosby acknowledges he obtained drugs to give to women he sought for sex — as evidence against him at trial.
This issue has come up before in an earlier hearing — and Cosby failed to persuade the judge to throw out the charges based on Castor's promise.
McMonagle argued that Castor’s promise should bar the deposition from being admitted. He quoted Castor’s own words from an email in which he described his promise and his intention to persuade Cosby to sit for the deposition.
“We know Mr. Castor gave his word because quite frankly, the evidence shows that,” McMonagle said. “’We didn’t need it in writing because we had his word. And when you have somebody’s word, it should be enough.”
O’Neill pointed out that Castor’s promise had already been deemed insufficient reason to dismiss charges against Cosby. He noted that nothing about the promise was written down or documented (other than a written statement to the press by Castor), and Cosby's attorney at the time, Wally Phillips has since died and can't be called upon to testify about what happened.
At that, McMonagle nearly erupted with frustration. "He’s dead because they waited 12 years to prosecute (Cosby),” McMonagle shouted, pointing to the prosecution. (The delay in prosecuting Cosby so long after the alleged crime is a major issue McMonagle has cited in court documents in the case.)
Prosecutors said Phillips' death was irrelevant because Castor’s inconsistent testimony at an earlier hearing should be proof enough that the intent of the agreement or promise was not clear or binding, said Assistant District Attorney Stewart Ryan.
“The credibility assessments from that February hearing and trying to reconcile those three different accounts that Mr. Castor offered,” are the heart of the problem with Castor's testimony, Ryan said.
The deposition issue isn't even the most controversial evidence matter in the case. Steele also wants to bring in 13 of the other five-dozen women who have accused Cosby of sexual assault dating back to the mid-1960s, to testify at his trial to his alleged "prior bad acts" — in effect, they will testify that Cosby did to them decades ago what he's accused of doing to Constand.
If O'Neill allows the other accusers to testify, Cosby's lawyers have filed court papers seeking more hearings to question these women on memory issues and their own credibility. Cosby says prosecutors are relying on "tainted, unreliable memories of women now in their senior years," possibly marred by time, media coverage of the case and their friendship with one another.
The issue of the 13 other women may not come up until tomorrow's hearing, when Cosby is expected to argue that such testimony would be more prejudicial than probative.
Meanwhile, celebrity attorney Gloria Allred turned up at the hearing Tuesday; she represents more than half of the women who have accused Cosby. During a break in the proceeding, she stood on the courthouse steps and addressed the media, specifically on the issue of race and Cosby's assertion is the victim of bias.
Allred dismissed this notion, pointing out that some of Cosby’s accusers are African-American. “I see this as an issue of whether or not there was gender violence, not whether there’s race involved,” she said.