PHILADELPHIA/LOS ANGELES (October 6, 2016) – Bill Cosby’s legal defense team has filed a key motion advancing a Constitutional argument that challenges the criminal prosecution against him on charges of sexual assault.
The motion, filed in the criminal court of Montgomery County, PA, seeks dismissal of felony charges brought against the comedian in 2015 based on deprivation of Mr. Cosby’s due process rights. From its opening passage, the brief outlines a confluence of prosecutorial and judicial impropriety, along with political posturing and media grandstanding that Mr. Cosby’s lawyers assert have made a fair trial impossible. The defense argues the criminal case cannot proceed.
“‘[T]he question before this Court is why the field of investigation was allowed to lie fallow’ for over a decade ‘while witnesses died and evidence disappeared,’” begins the 25-page motion. It continues:
“During that lengthy delay, numerous actors—the Commonwealth of Pennsylvania; a federal judge with a baseless theory; a lawyer who parades her clients’ untimely, unverifiable claims before the media; and a district attorney who publicly branded a celebrity for his own political gain—created a perfect storm of prejudice, bias, and delay that requires dismissal of the stale charges against Bill Cosby.”
What has been largely ignored in the firestorm around Mr. Cosby is that the Montgomery County District Attorney’s office promised not to prosecute him in 2005 following a thorough investigation of basketball coach Andrea Constand’s claims that the entertainer molested her at his home in 2004. The District Attorney at the time stated there was “insufficient credible and admissible evidence upon which any charge against Mr. Cosby related to the Constand incident could be proven beyond a reasonable doubt in a court of law.” In particular, the District Attorney found:
- Constand’s delay of more than a year before coming to police and her inconsistent statements regarding her allegations’ details undermined her credibility;
- The “inordinate number of contacts” between Constand and Mr. Cosby after the incident—including over 20 communications and meetings—undermined the credibility of her claims;
- The fact that Constand contacted a civil lawyer before going to the police “created a credibility issue for her that could never be improved upon”; and
- The accusations of other accusers “would not be admissible” at trial because they were “decades old and they were never reported to the police.”
- And yet, the investigation was reopened in 2015 with no evidence presented that wasn’t previously available, the defense argues.
A central plank of the prosecution’s current case instead rests on a 2005 deposition that Mr. Cosby was forced to give in a civil suit brought by Ms. Constand. That case was subsequently settled, and Ms. Constand released all future claims against Mr. Cosby. The defense motion recounts that the County’s then-District Attorney promised Mr. Cosby permanent immunity from criminal prosecution so that Mr. Cosby could be forced to testify in a deposition without invoking his Fifth Amendment right against self-incrimination. Mr. Cosby then testified and, relying on the DA’s promise and Ms. Constand’s release, did not invoke his constitutional Fifth Amendment privilege.
“He never would have testified if the Commonwealth had not promised that he would never be prosecuted,” the motion states. In 2015, after the death of Mr. Cosby’s then-attorney, “the Commonwealth apparently felt free to disavow its promise, and reopened its investigation shortly thereafter.”
In another egregious disregard of the defendant’s rights, the motion describes how in July 2015, the judge who had presided over Ms. Constand’s civil case eight years earlier hastily unsealed extensive portions of Mr. Cosby’s confidential testimony from 2005. The excerpts were widely misreported and mischaracterized by the press and social media, raising an enormous presumption of guilt in the public’s mind. Although the judge had no legal basis for releasing the testimony, there was no way for an appellate court to fix that error.
The motion details how the prejudice against Mr. Cosby has been magnified by the prosecution’s plans to rely on testimony from 13 women – nearly all of them represented by Gloria Allred – whose accusations against Mr. Cosby go back as far as the 1960s. After waiting 27-46 years after the alleged incidents to come forward, their accounts are impossible to verify. “Any possibility that Mr. Cosby could obtain exculpatory evidence – hotel records, witness testimony, receipts, etc. – has been lost forever,” the motion states.
That the County now believes their testimony can be used against Mr. Cosby contradicts the conclusion made by the same office in 2005 when considering accounts from other women interviewed as part of its original investigation. Then, the DA determined that testimony from other accusers “would not be admissible” at trial because their allegations were “decades old and never reported to the police.” As First Assistant DA Risa Vetri Ferman (now a judge in the Montgomery County Court of Common Pleas) remarked in 2005: “Generally, an accusation from over 30 years ago is not going to be considered admissible in court or relevant to an investigation.”
Politics has also played an outsized role in tilting the criminal case against Mr. Cosby, his lawyers argue. The defense motion notes that current Montgomery County District Attorney Kevin Steele rode into office in the fall of 2015 with the promise of a Cosby prosecution a centerpiece of his campaign – including television ads branding Mr. Cosby a “sexual predator” who needed to be locked away, as if the nearly 80-year-old, nearly blind defendant posed a threat to citizens of the County.
The years-long delay of the criminal case has put major, pre-trial points on the board for the prosecution, the motion argues, especially since a number of potential witnesses have died.
“When a defendant is prejudiced by the government’s delay in bringing charges, ‘the absence of valid reasons to justify the late filing of charges will mandate the trial court’ to dismiss those charges,” Mr. Cosby’s lawyers argue, citing precedent from the Pennsylvania Supreme Court.
“[T]he Commonwealth gained a tremendous strategical advantage against [Mr. Cosby] due to the passage of time and the loss of critical defense testimony through death and memory loss,” the defense motion continues. “Accordingly, ‘the due process clauses of the Constitutions of the United States and Pennsylvania require that the charges be dismissed.’”
The motion goes on to set forth a detailed timeline of facts supporting the defense’s claim that public perception of Mr. Cosby has been heavily tainted by the mishandling of his confidential deposition testimony from 2005, which rested on a vow by the District Attorney not to prosecute.
“Prompted by the avalanche of publicity caused by the improper release of Mr. Cosby’s deposition testimony, a new wave of women—ushered by [Gloria] Allred—come forward to read prepared statements to the media…about alleged encounters with Mr. Cosby as long as four-plus decades earlier,” the motion states. “Not surprisingly, many of the claims mimic information in Mr. Cosby’s deposition. The media repeats the accusations without conducting independent investigation, leading more women to claim ‘me, too.’”
Mr. Cosby’s trial team, led by trial veterans Brian McMonagle of McMonagle, Perri, McHugh & Mishak and Angela Agrusa of Liner LLP, explained the underpinning of the defense motion.
“Bill Cosby has lived an extraordinary and exemplary pubic life for well over 50 years – not only as a comedian and TV star, but also as an educator, philanthropist, author, producer, commercial pitchman and civil rights advocate,” Mr. McMonagle and Ms. Agrusa said.
“Unfortunately, that legacy has been hijacked by the Montgomery County’s DA office – by disavowing its oath not to prosecute Mr. Cosby, by drawing on testimony that was found unreliable more than a decade earlier, and by advancing a monstrous image of Mr. Cosby that would prejudice any jury pool. Add to that the unconscionable release and subsequent rampant misquoting in the media of Mr. Cosby’s confidential civil deposition testimony, given under the promise of immunity – and you begin to appreciate why the defense feels so strongly that Mr. Cosby has been denied his Constitutional right to a fair trial.”
The defense motion ends on a stark note – drawing from a previous Commonwealth decision of law that eerily prefigures Mr. Cosby’s predicament:
“The Commonwealth’s “decision to prosecute [Mr. Cosby] after more than eleven years, with no additional evidence” that was previously unavailable, “and with no ongoing investigation in the last [ten] years, is so egregious that it cannot withstand even the most deferential standard of review.” Accordingly, “the due process clauses of the Constitutions of the United States and Pennsylvania require that the charges be dismissed.”
The case against Mr. Cosby is captioned: Commonwealth of Pennsylvania v. William H. Cosby, Jr.; No. CP-46-CR-3932-2016.