Bill Cosby’s lawyers have launched their most comprehensive effort to date to have the sexual assault charges against him dropped, arguing that various factors “created a perfect storm of prejudice, bias, and delay” that requires the dismissal of the charges against the entertainer.
The motion, filed Thursday in the Pennsylvania court where Cosby is facing trial for a 2004 incident involving then-Temple University basketball staffer Andrea Constand, argues that the delay in bringing charges has prejudiced the jury and violated Cosby's due-process rights.
It also cites what the defense alleges was an agreement made more than a decade ago by a former Montgomery County district attorney not to prosecute Cosby, while simultaneously alleging that civil-trial documents that help fuel the prosecution's case were improperly unsealed.
The combination of those factors demands that the “stale charges against Bill Cosby" be dropped says the motion, penned by Cosby attorneys Brian McMonagle and Angela Agrusa and running some 30 pages.
But whether the attempt will succeed remains to be seen. Despite the extensive nature of the motion, much of its content has been argued — and denied — in one form or another before.
The motion laid out the years-long inaction of the former district attorney, Bruce Castor, and also said that Cosby testified at the civil trial under the belief he held criminal immunity.
Enumerating a rather exhaustive timeline of events, it focuses specifically on the July 2015 unsealing of a civil-trial deposition by a judge, Eduardo C. Robreno, and the subsequent publication of its contents by the Associated Press. The details became front-page news and, the defense argues, prejudiced the jury pool by revealing “vivid, unforgettable information" — a standard for fair celebrity trials established by a Supreme Court case involving a former Enron executive.
A news release from Cosby’s team announcing the motion decried "a combination of serious prosecutorial and judicial impropriety that have deprived him of his right to a fair trial."
However, an attempt by the defense to dismiss the charges because of an alleged Castor non-prosecution agreement was rejected by the judge in the case in February. That judge, Steven T. O'Neill, has thus far generally been intent on pushing forward and has waved aside a number of the defense’s attempts at delay or dismissal. Many experts believe the trial will proceed.
"What you're hearing a is a novel argument--while [the motion] restates a lot that has been heard before it's legally very different," said Dennis C. McAndrews, a legal expert and former Pennsylvania prosecutor. "Even if individually none of the claims can lead to a dismissal, what the defense is arguing is that collectively they inject enough doubt into the idea that Cosby could get a fair trial."
Ultimately, though, McAndrews said he believed the motion would be rejected. “As long as you can get 12 people who say they can set all this aside and judge fairly—and you will--judges like to leave these things to a jury.”
Even if the motion is denied, however, the defense hopes the move could further shape public—and, ultimately, the jury’s—perception of the defendant, tilting sympathy in his favor.
Cosby is facing three felony counts of aggravated indecent assault stemming from an incident of sexual contact with Constand, whom he supplied with wine and a pill at his suburban Philadelphia home in 2004.
Montgomery County Dist. Atty. Kevin Steele, elected last year in part on a pledge to prosecute Cosby, filed the charges in December just before the statute of limitations was set to expire. Cosby has since been in court numerous times, with a May pretrial hearing determining the case will move forward. Last month, O'Neil set a trial date for early June.
The case has brought together issues of celebrity, the criminal justice system and gender politics in a way rarely seen in the U.S. At issue for many in the matter is whether a famous entertainer used his power to lure women and then compel them to have sex with him, as Cosby critics argue, or whether these were consensual encounters between a celebrity and partners who sought his company, as his defenders say.
Cosby's lawyers on Thursday cited his place in the pop-culture firmament.
“Bill Cosby has lived an extraordinary and exemplary public 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,” McMonagle and Agrusa said. “Unfortunately, that legacy has been hijacked by the Montgomery County’s D.A. office."
They also invoked race, saying that the high profile publicity has turned the public "into a mob, willing to believe unsubstantiated, decades-old allegations against an African-American citizen who has spent the last half a century trying to foster an appreciation for the commonalities of every American, regardless of race, gender,or religion."
The Constand case has also become a flashpoint for the dozens of women who say they have been sexually assaulted by Cosby. Nearly all of the incidents have reached their statute of limitations, turning the Pennsylvania proceedings into what victims-rights advocates say is a kind of vicarious pursuit of justice. Last month, Steele filed a motion to allow 13 women who say they were assaulted by Cosby to testify in the case on the grounds that they can demonstrate a "pertinent trait” on the defendant’s part.
The defense, meanwhile, has sought to portray many of these instances as self-serving. The motion cited the involvement of high-profile attorney Gloria Allred with alleged victims and decried what it says is a media circus more than a legal proceeding. "The time has come to put an end to this tempest," the motion said.