NORRISTOWN >> Entertainer Bill Cosby, whose “eyesight and memory have considerably declined” during the last 11 years has been prejudiced by prosecutors’ decade-old delay in bringing sexual assault charges against him and therefore the charges should be dismissed, his lawyers argued in court papers.
Cosby’s lead defense lawyer Brian J. McMonagle filed papers in Montgomery County Court on Thursday asking a judge to rule that Cosby’s “due process rights were violated” by the prosecution’s “unjustified ten-year delay” in filing charges against Cosby. McMonagle argued the allegations against Cosby first surfaced in January 2005 and he wasn’t charged until December 2015 and that that pre-arrest delay constitutes a denial of due process under the Pennsylvania and U.S. constitutions.
Cosby was prejudiced by the delay in filing charges because the death of his former lawyer, Walter M. Phillips Jr., prevented him from proving the existence of what Cosby has argued was a 2005 promise by former county District Attorney Bruce L. Castor Jr. not to prosecute the entertainer based on the claims made by alleged victim Andrea Constand.
“Mr. Cosby has further been prejudiced by the delay in his arrest because his eyesight and memory have considerably declined in the eleven-year period since the assault was alleged to have taken place, thereby preventing him from assisting in his defense,” McMonagle wrote in court papers.
Cosby has further been prejudiced by the delay in his arrest because District Attorney Kevin R. Steele “made the prosecution of Mr. Cosby a focal point of his campaign for district attorney in October 2015, generating a great deal of negative publicity towards Mr. Cosby,” McMonagle argued.
“When the commonwealth’s delay causes actual prejudice to a defendant, ‘the absence of valid reasons to justify the late filing of charges will mandate the trial’ court to dismiss the charges,” McMonagle argued, citing state court precedent.
It’s unclear when Judge Steven T. O’Neill will hold a hearing on the request.
Steele will have a chance to respond to the defense request in court papers or when the judge holds a hearing on the matter.
Cosby, 79, faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with allegations he had inappropriate sexual contact with Constand, a former Temple University athletic department employee, at his Cheltenham home between mid-January and mid-February 2004.
Thursday’s court filing is not the first time McMonagle has relied in part on Castor’s alleged 2005 promise in an attempt to have the charges dismissed against Cosby. Shortly after Cosby was arrested last December McMonagle asked the judge to dismiss the charges, on the grounds Steele intentionally breached the 2005 promise that specified Cosby would never be charged.
After a hearing in February, O’Neill rejected Cosby’s claim that he had a valid non-prosecution promise from Castor and moved Cosby’s criminal case forward. Cosby’s subsequent appeal of O’Neill’s order to the state Superior Court was ultimately quashed in April, setting the stage for Cosby’s case to move forward.
The latest appeal deals solely with the issue of the alleged unfairness created by the pre-arrest delay.
The defense team’s repeated requests to dismiss the charges has primarily rested on the word of Castor, district attorney from 2000 to 2008, who during seven hours of testimony on Feb. 2, claimed he made a binding promise to Cosby and his then lawyer, Phillips, in 2005 that Cosby would never be prosecuted in connection with Constand’s allegations. Phillips has since died and Castor has been the prime defense witness regarding the alleged promise.
Stopping short of calling his decision an “agreement,” Castor claimed he alone as a “sovereign” entity had the authority to make a binding decision. Castor previously testified he made the promise after becoming concerned about evidentiary issues during the 2005 investigation and determining there wasn’t enough “reliable and admissible” evidence to prosecute Cosby at that time.
The decision, Castor has testified, was made to create an atmosphere that would induce Cosby to testify in Constand’s civil litigation against him and allow Constand to prevail civilly and “make a lot of money.” That decision not to prosecute, Castor implied, removed from Cosby the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath in the civil case over the course of four days between September 2005 and March 2006. The civil case was ultimately settled for an undisclosed sum in July 2006.
Current prosecutors reopened the criminal investigation in July 2015 after segments of Cosby’s deposition connected to the 2005 civil suit were unsealed by a judge. In that deposition, Cosby gave damaging testimony, allegedly admitting he obtained Quaaludes to give to women with whom he wanted to have sex.
The charges were lodged against Cosby on Dec. 30, 2015, before the 12-year statute of limitations to file charges expired.
Steele and co-prosecutors M. Stewart Ryan and Kristen Feden have argued “the supposed 2005 agreement never existed, but instead was revisionist history manufactured a decade later.” Prosecutors also accused Cosby and his defense team of trying to obtain “piecemeal determinations” and of trying to delay Cosby’s trial.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.
