Defense: Bill Cosby’s ‘Spanish Fly Shtick’ not relevant at trial

Bill Cosby arrives at the Montgomery County Courthouse in Norristown on Feb. 2, 2016.

NORRISTOWN >> Calling Bill Cosby’s references to “Spanish Fly” comedic “shtick,” his defense lawyers want a judge to prevent prosecutors from moving forward with their plans to introduce them at the actor’s trial on charges he sexually assaulted a woman in 2004.

“Mr. Cosby’s comedic references to Spanish fly are not admissions of anything; they are jokes – fabrications and fictionalized tales recounted to entertain Mr. Cosby’s audiences. These jokes are not about Mr. Cosby, not about assault, and not about rendering anyone unconscious,” defense lawyers Brian J. McMonagle and Angela C. Agrusa wrote in papers filed in Montgomery County Court on Friday.

McMonagle and Agrusa, referring to the jokes as “Mr. Cosby’s Spanish Fly Shtick,” argued they are not relevant to the allegations lodged against Cosby. The defense team suggested prosecutors want to use the jokes to damage Cosby’s character and they argued that any use by prosecutors at trial would be prejudicial to Cosby.

Cosby, 79, faces a June 5 trial on charges of aggravated indecent assault in connection with his alleged contact with Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his Cheltenham home sometime between mid-January and mid-February 2004.

On Thursday, county District Attorney Kevin R. Steele filed papers seeking to use Cosby’s discussion of Spanish fly in a nonfiction book he wrote and during an interview on “The Larry King Show” in 1991 as evidence against Cosby at the upcoming trial. Steele alleged Cosby’s comments “tend to establish that he had access to, knowledge of, and a motive and intent to knowingly use substances that would render a female unconscious for the purpose of engaging in sex acts.”

Quoting from Cosby’s 1991 book “Childhood,” Steele and co-prosecutors M. Stewart Ryan and Kristen Feden contend the actor recounted a memory from his youth in which he and his friends seek out “Spanish Fly, an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert.”

Cosby, according to Steele, wrote that he and his friends needed the aphrodisiac because females were “never in the mood for us.” After explaining how he and his friends unsuccessfully tried to secretly slip what they thought was Spanish fly to a group of girls, Cosby, according to court documents, wrote, “My style perhaps could have been smoother, but this, after all, was the first aphrodisiac I ever had pushed.”

In court documents, prosecutors contend that in the 1991 interview on “The Larry King Show,” Cosby extolled Spanish fly as a drug that “all boys from age 11 on up to death” will be searching for.

“He explained that all it took was a single drop into a woman’s drink and she was then yours,” Steele alleged, claiming the interview is relevant because it tends to prove Cosby “had knowledge of date-rape drugs, that he was searching for them ‘up to death,’ and that he was willing to slip them to the victim in this case.”

Steele’s request to use excerpts from Cosby’s book and television interview against him at trial will likely be addressed when county Judge Steven T. O’Neill holds a pretrial hearing on Monday on the admissibility of certain evidence.

“It is not a joke about assault. It is not a joke about rape. It is not a joke about making someone unconscious or unable to fight off an attack. It is not even a joke about drugging. The fact that the commonwealth is distorting humor into some menacing plot by divorcing it from its context is exactly the reason why the topic of Spanish fly should be excluded from trial,” McMonagle and Agrusa responded.

Cosby, according to McMonagle and Agrusa, “is one of the greatest comedians of the twentieth and twenty-first centuries” who built a career on his ability to observe the world and distill from it identifiable scenarios that resonate with people for “their irony, satire, absurdity, exaggeration or other humorous aspects.”

“This is a form of artistic expression and social commentary. The vast majority of the material he developed over the last fifty years never happened in real life. It was for humor,” McMonagle and Agrusa wrote.

There is only one rule in comedy: to be funny, the defense lawyers said.

“Using this material as proof of Mr. Cosby’s character, motive, or intent would bring information before the jury that has nothing to do with Ms. Constand’s allegations and it would seriously prejudice Mr. Cosby,” McMonagle and Agrusa argued.

If convicted of the charges at trial, William Henry Cosby Jr., as his name appears on charging documents, faces a possible maximum sentence of 15 to 30 years in prison. He remains free on 10 percent of $1 million bail, pending 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.

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