Montgomery County prosecutors address admissibility of Bill Cosby civil settlement at trial

Bill Cosby arrives at the Montgomery County Courthouse in Norristown for his preliminary hearing on sexual assault May 24, 2016.

NORRISTOWN >> If Bill Cosby and his lawyers are permitted to mention to a jury that the entertainer was sued by Andrea Constand, the woman who accused him of sexual assault, then evidence of the 2006 civil settlement also should be admissible at his upcoming criminal trial, prosecutors contend.

“Such evidence is critical to rebut any charge or claim of Ms. Constand’s bias,” Montgomery County prosecutors wrote in court papers filed Thursday. “Put simply, Ms. Constand does not have any bias or interest in the outcome of a case that settled over ten years ago.

“Any evidence that Ms. Constand sued defendant, without any accompanying evidence that the matter is resolved, will falsely suggest that she has bias or interest in the outcome of the case, which she does not and cannot have. Defendant is essentially asking this court to allow him to peddle a fiction to the jury,” prosecutors added.

Deputy District Attorney Robert M. Falin and co-prosecutor Kristen M. Gibbons claimed Cosby and defense lawyers Brian J. McMonagle and Angela C. Agrusa, in court papers filed last month, asked the judge to exclude any mention of the settlement and negotiations leading up to it as unfairly prejudicial “while in the same breath asks this court to permit admission of the existence of the civil suit.”

“Lastly, the details of the intense negotiations that ultimately led to the settlement of the civil suit clearly show defendant’s guilty mind. Should the court permit evidence of the civil lawsuit, it should permit the fact of settlement and the circumstances leading up to it as evidence of defendant’s consciousness of guilt,” wrote Falin and Gibbons, who are assisting District Attorney Kevin R. Steele in the prosecution of Cosby.

Prosecutors said if Judge Steven T. O’Neill rules evidence of the civil suit is excluded from the criminal trial, then prosecutors would withdraw their request to admit evidence of settlement and the circumstances surrounding it.

A hearing on the matter has not yet been scheduled.

Cosby, 79, faces a June 5 trial on charges of aggravated indecent assault in connection with his alleged contact with 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.

Jury selection for the trial begins May 22 in Pittsburgh.

In court papers filed last month, Cosby, through his lawyers, indicated he doesn’t want the jury to know anything about the October 2006 civil settlement he negotiated with Constand. Defense lawyers argued there’s a “risk that its admission would only confuse the jury and be unfairly prejudicial” and that the jury would “view the settlement agreement as a confession of liability and guilt.”

On March 8, 2005, Constand filed a civil suit against Cosby in U.S. District Court in Philadelphia, alleging, among other things, “claims for battery, sexual assault and intentional infliction of emotional distress” based upon the same alleged sexual encounter that is the subject of the criminal charges filed against Cosby in December 2015, according to court documents.

The civil suit was filed three weeks after former county District Attorney Bruce L Castor Jr. issued a Feb. 17, 2005, press release confirming his office had declined to file criminal charges against Cosby.

The civil suit was subsequently resolved in October 2006 for an undisclosed amount, according to court papers.

Cosby was deposed in connection with the lawsuit over four days in September 2005 and March 2006, court documents indicate.

Steele reopened the criminal investigation in July 2015 after portions of Cosby’s deposition connected to the civil suit were unsealed by a federal judge and his alleged damaging testimony was exposed.

In that deposition, Cosby, according to court documents, admitted that in the past he obtained Quaaludes to give to women with whom he wanted to have sex. Prosecutors contend Cosby also admitted for the first time to developing a romantic interest in Constand when he saw her at a Temple basketball game and to having sexual contact with Constand.

Prosecutors subsequently filed criminal charges against Cosby on Dec. 30, 2015, before the 12-year statute of limitations to file charges expired.

Cosby has suggested the contact he had with Constand was consensual.

McMonagle unsuccessfully had argued that Cosby relied on a so-called 2005 “non-prosecution promise” provided by Castor when he agreed to testify in the civil suit brought by Constand and that any evidence derived from his deposition could not be used against him.

But prosecutors argued there was no previous, valid non-prosecution promise and that Castor did not promise Cosby that he would never be prosecuted.

The case represents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime despite allegations from dozens of women who claimed they were assaulted by the entertainer.

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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