Cosby hearing: Day 2 examines long delay between accusation and arrest

NORRISTOWN, Pa. — Bill Cosby returned to court here Wednesday for a second day of legal arguments about whether the lengthy passage of time between accusation and arrest on sex-assault charges has irreparably harmed his right to due process and a fair trial.

Lawyers for the 79-year-old Cosby argued, again, that the charges against him should be thrown out before his expected June trial date in suburban Philadelphia.

Cosby, who is considered legally blind, faces three counts of aggravated indecent sexual assault stemming from a 2004 encounter at his nearby home with Andrea Constand, an ex-Temple University employee whom Cosby mentored. Constand says Cosby drugged and groped her; Cosby says their encounter was consensual.

Constand did not report what she says happened to her until a year later, when lack of evidence made it difficult to prosecute according to Bruce Castor, the district attorney at the time. More than a decade later, newly elected District Attorney Kevin Steele filed the charges against Cosby, just before the statute of limitations expired.

This delay, argued Cosby attorney Angela Agrusa, was too long and unnecessary. Moreover, she said, the charges grew out of Steele's election campaign for district attorney in the fall of 2015, against Castor.

"In his campaign, he elected to platform against Mr. Castor on the theory that he would be tougher on sexual predators like Mr. Cosby,” Agrusa said. “We believe this case is not about (a) deposition. It’s about a prosecutorial change of policy.”

In not prosecuting Cosby for 11 years, the case became stale, Agrusa said, making it nearly impossible for the government to legally pursue and for a defense team to adequately defend.

“While the government did nothing for a full decade, it gained tremendous strategic advantage over Mr. Cosby,” Agrusa said, noting loss of evidence in the case, the loss of key witnesses like Cosby’s late attorney Wally Phillips, and the loss of Cosby’s vision.

On Tuesday, the hearing before Judge Steven O'Neill focused mostly on a frank — and damaging — deposition Cosby gave in Constand's civil suit against him in 2005. Cosby says he agreed to be deposed after Castor promised he would not be prosecuted if he testified fully.

The civil suit was settled in 2006, then sealed. Nearly a decade later, after dozens of women began coming forward to accuse Cosby of drugging and/or raping them, a judge released portions of the deposition in which Cosby acknowledged obtaining drugs to give to women he sought for sex. When Steele filed the charges at the end of 2015, he cited those accusations and the deposition as "new evidence" against Cosby.

O'Neill has not yet ruled on whether the deposition will be admitted as evidence at Cosby's trial.

During Wednesday's hearing, O’Neill and Agrusa argued over what brought the Cosby case to this point. Cosby's lawyer in 2005, Phillips, would not have been a deciding factor other than to bear witness to the so-called oral promise made between Castor and Cosby’s attorney, O'Neill said. Agrusa insisted Phillips' voice would have made a difference.

“The very deposition, the most problematic result of a broken promise, is the sole basis of this proceeding today,” Agrusa said. “There very well would (sic) have been a balance of testimony (with Phillips here). That testimony would have prevented where we are today.”

Furthermore, she said, case law protects defendants like Cosby from being tried on charges decades old, despite the statute of limitations.

“The constitutional right to due process protects defendants from having to defend stale charges and criminal charges should be dismissed if improper pre-arrest delay causes prejudice to the defendant’s right to a fair trial,” Agrusa said, citing case law.

The fact that Cosby is now blind makes matters even more difficult, she said, as he can’t be expected to look at photos and recognize his accusers.

“I don’t think we can ignore the fact,” Agrusa added, “that those issues do affect due-process rights.”

The court also has not yet heard arguments on whether to admit as trial evidence testimony from all or some of 13 other accusers of Cosby whose accounts of what they say Cosby did to them establish a pattern of “prior bad acts.”

The prosecution hopes these witnesses will strengthen their case, even though statutes of limitations have run out on their allegations, and their accounts are not directly related to the encounter between Constand and Cosby.

That issue is likely to be held over until December, when more days of pre-trial hearings are scheduled.


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