From the moment sexual assault charges were filed against Bill Cosby in December, the case became a touchstone for the dozens of other instances in which women say they were attacked by the entertainer.
On Wednesday, with Cosby present, the issue of how to view those alleged victims exploded in court, as prosecutors and defense attorneys argued about how, when and whether many of those women should testify.
“This is another attempt to intimidate," said the prosecutor, Montgomery County Dist. Atty. Kevin Steele. He was referring to the defense’s decision to identify 13 purported Cosby victims whom Steele hopes to call as witnesses in the case involving the comedian and former Temple University employee Andrea Constand — and suggested the defense aimed to demonize the women or even scare them into not testifying.
“This is all [about] trying to get at people,” Steele said.
A moment later, the lead defense lawyer, Brian McMonagle, responded with an equally pointed set of comments in defense of Cosby.
“This is a crucial time in this courthouse and criminal justice as a whole,” he said, his voice rising. “People [once] had the presumption of innocence. But the pendulum has swung. I’ve never seen the pendulum swing so far. We started with the rape shield law to introduce evidence of accusers … and now we’re actually debating whether we can bring in 13 people who have nothing to do with Andrea Constand?”
At legal issue is whether the women can testify about their interactions with Cosby because, together, their stories form a pattern of behavior that reinforces the charges against the entertainer.
Emotionally, however, there is more at stake.
Many of the women who’ve come forward have pinned their hopes on the Constand case, in which Cosby is charged with three counts of aggravated indecent assault over a 2004 incident in which he had sexual contact with Constand at his Pennsylvania home. Because nearly all their cases have exceeded the statue of limitations, they say, they hope this case can bring them vindication.
McMonagle on Wednesday said he was suspicious of the other alleged victims because 10 of the 13 called to testify were represented by one lawyer, Gloria Allred. He suggested the women were on a witch hunt for his client, egged on by the outspoken attorney.
“I’d like you to find out what’s going on here,” McMonagle said, addressing the judge. “What might be wrong in Denmark.”
Sitting in the back of the courtroom, Allred stirred, then held an impromptu news conference outside.
"It's not the first time I've been attacked by the defense," Allred said. "I guess Mr. McMonagle is very concerned that these witnesses have representation. [He's] going to have put on their big-boy pants and deal with it.”
The judge in the case, Steven T. O’Neill, will not rule until next month whether the 13 women can testify. But on Wednesday he set up a road map in which McMonagle will present a plan for O’Neill to interview the women in chambers — the judge said he may or may not accept it -- before making a ruling.
The decision is also being closely watched by victims’ rights advocates, some of whom were in the courtroom Wednesday.
O’Neill will base his ruling on whether these women’s stories indeed attest to a specific pattern and also whether their testimony would prejudice the jury.
The prosecution’s decision to pursue those witnesses is a bold stroke, and legal experts believe several outcomes are possible if it’s not accepted wholesale. One is that the judge will whittle down the number that can testify. Another is that all of them will be excluded.
The session Wednesday in this suburb north of Philadelphia concluded a two-day set of hearings in which lawyers for Cosby have attempted to get the charges dismissed — or, barring that, the evidence severely restricted.
Defense attorneys this week pleaded for the suppression of evidence gathered from a civil lawsuit in which Cosby admitted to buying drugs to have sex with women. They argued that their client testified in that case only because he thought he wouldn’t be prosecuted criminally.
And on Wednesday, Cosby’s lawyers argued his blindness will impede his ability to receive a fair trial and should lead to a dismissal of the sexual-assault charges.
“He is physically impaired. He cannot see,” the attorney, Angela Agrusa, said, as Cosby sat nearby with a walking stick at his side. “We can’t test his memory, because he can’t see.”
The comments came as part of a bid by the entertainer’s lawyers to have the case thrown out on the grounds that the alleged incident happened too long ago, putting their client at a disadvantage. A key witness, former Cosby lawyer Walter Phillips, has died (he could have testified to an alleged non-prosecution agreement with a previous D.A, the defense says), while Cosby's blindness means he won't be able to counter evidence brought against him.
“There was an 11-year delay," Agrusa said. "What is gone because of [it]?” Agrusa asked rhetorically.
Cosby’s lawyers argue that the case is only being brought now because of politics. (Steele ran and won last year on a prosecute-Cosby platform.) During the campaign, Steele’s “cause celebre became attacking Mr. Cosby, stating publicly his opponent has not been aggressive enough," Agrusa said Wednesday, showing a campaign ad.
But the D.A.’s office has maintained that it simply didn’t have enough evidence earlier, and that charges were brought in December 2015 because of new details from a 2005 civil deposition that was just unveiled in July 2015.
That position on Wednesday was underlined by O’Neill, who questioned Agrusa aggressively. “ Your argument is they knew or should have known [the contents of the deposition] in 2005 or 2006,” he said. “I’m having a hard time figuring out how that applied in 2015.”
O’Neill also queried Agrusa on the blindness issue. “You’re saying because he doesn’t have sight he doesn’t have memory,” the judge said. “That’s a big leap.”
It remains a matter of debate whether Cosby is in fact near-blind. The prosecution said in court Wednesday they do not accept that contention. Deputy Dist. Atty. Robert Falin called the diagnosis "something you get when you walk out of LensCrafters…. Is he really saying that he can’t see a photo if it’s held 6 inches from his face?”
Cosby’s eyesight has become a public focus as well, particularly for his detractors, who point to a photo that surfaced earlier this year showing Cosby exiting an airplane in Los Angeles without assistance.
At one moment during Agrusa’s argument Wednesday, Cosby stood up from his chair and appeared unsteady, as the assistant and lead attorney Brian McMonagle quickly helped him.
“Is he OK?” O’Neill said before calling for a short recess.
Though unintentional, the moment fit into a larger attempt to humanize Cosby. “My client is not a meme — he’s a human being,” Agrusa said during her argument, noting he was being “vilified by a “merciless” public.
As he has other days, Cosby walked in to and out of court Wednesday holding the arm of a staffer, who has often sat behind him during hearings.
Dressed in a green-tinted plaid suit, Cosby later stood outside the courthouse with his attorneys for a news conference. He didn’t say much, but did give a small smile when a reporter asked how he was and then a “thank you” when someone told him he looked well.
McMonagle, however, spoke on the comedian’s behalf.
"We've maintained from the beginning that [Cosby's] rights have been violated," the attorney said. "And from the beginning he's maintained his innocence. We looks forward to being able to put this behind us so he can go on with his great life."