NORRISTOWN, Pa. —
But Cosby faced more bad news as the hearing opened: Just hours before, prosecutors filed to include the testimony of 13 other women who accuse Cosby of similar assaults to testify at a future trial. District Attorney
Steele's plan to call testimony from witnesses asserting a pattern of "prior bad acts" had been expected, but this was the first official indication of the prosecution's intentions. Cosby's defense team is expected to argue vociferously against such a move.
“During the course of this case, the Commonwealth investigated nearly 50 women allegedly victimized by defendant,” the court papers say. “What became clear was that defendant has engaged, over the course of his lifetime, in a pattern of serial sexual abuse.”
Judge O’Neill postponed hearing arguments on the filing at the Tuesday hearing, giving the defense team more time to review the copious material.
Despite the delay in the trial, Steele said his team is prepared to start selecting a jury tomorrow.
Defense attorneys, led by busy Philadelphia lawyer Brian McMonagle, lamented that much of Cosby's track record of working for civil rights and against racism had been lost in the recent negative publicity surrounding the case and his multiple accusers.
Time to litigate this issue and many others will be necessary, accounting for the long delay in the start of a trial, says defense lawyer Stuart Slotnick, who's been following this case.
"This case could be potentially lost on the outcome of this motion," Slotnick said. "The judge will have to weigh whether this kind of testimony is probative or prejudicial. It'sthe most important issue in the case."
Cosby, who arrived in court wearing a light grey suit and assisted by aides, spoke with McMonagle extensively before the hearing began.
At stake in the Tuesday hearing were some of the same issues Cosby's legal team has been raising since the three charges of aggravated indecent sexual assault were filed against him in Montgomery County outside Philadelphia by Steele in December 2015.
Cosby, 79, maintains the encounter at his nearby home with former protegé Andrea Constand, 43, was consensual. Constand, a Canadian now living in
Steele is pursuing Cosby now because he believes he has new evidence: Cosby's own words in a deposition he gave in the civil lawsuit Constand filed against him in 2005, which was later settled. Also, the transcript of a secretly recorded phone call between Cosby and his accuser's mother, Gianna Constand, also in 2005.
Judge O'Neill put off ruling whether that evidence will be admitted or not.
In the deposition, Cosby acknowledged obtaining drugs to give to women he sought for sex. In the phone call, he described his sexual encounter with Constand. McMonagle argues that the deposition should be tossed because it was given after Castor made a verbal promise to Cosby not to prosecute him if he agreed to testify in the deposition.
McMonagle wants the phone call suppressed because he argues it violates Pennsylvania's wiretap law, which requires that both parties be aware of recording, and violated Cosby's privacy. At the time of the call, Gianna Constand was in Canada, Cosby was in California.
In the phone conversation, Cosby asked if he was being recorded after hearing a beeping noise. Constand’s mother told him it was a parrot in the background. “I submit to the court that the whole thing stinks and I want it thrown out," McMonagle said, after detailing Pennsylvania law requiring dual-consent for recordings.
O’Neill said he needed to hear the recorded phone call himself to determine whether Cosby did know he was being recorded and thus whether the phone call will be admitted.
McMonagle said he plans to file for a change in venue for both the location of the trial and the jurors, asserting the current population is too saturated with information about the case. O'Neill expressed skepticism that an untainted jury pool could be found anywhere else.
“This is a case of national interest,” O’Neill said. McMonagle said his team is still researching what locations may not have been inundated with the story that has garnered national headlines.
O’Neill stressed early in the hearing that Cosby, like all defendants, has a right to a speedy trial in the state of Pennsylvania. As of Tuesday, 252 days had passed since Steele filed the original criminal complaint charging Cosby.
“I don’t think anyone who is associated with this case believes that this case will be tried by this date (Dec. 29, 2016),” O’Neill said, referring to the year mark from the filing of the complaint.
Cosby's last appearance in court was in early July, when he tried to get the charges dismissed on the grounds that Constand did not take the stand for cross-examination.
But he lost that argument. Judge O'Neill ruled that the prosecution could use a recent ruling by the state Supreme Court allowing hearsay evidence, such as Constand's statement to police, rather than forcing an accuser to appear in court. Since the case was reopened in December, Constand has not appeared in court to face Cosby.
Of the nearly 60 women who have accused Cosby of drugging and/or raping them in episodes dating back decades, only Constand's accusations have resulted in criminal charges. Each charge against him carries five to 10 years in prison and a $25,000 fine.
Meanwhile, Cosby’s defense team has been trimmed: Monique Pressley, formerly the public face of Cosby's various legal battles (he's also fighting civil lawsuits filed in connection with the accusations against him), removed herself from his team last month, according to court filings.
Angela Agrusa, who is currently representing Cosby in some of the civil suits, has joined his criminal defense team and was in court with Cosby and McMonagle on Tuesday.