NORRISTOWN, Pa. (CN) — Bill Cosby’s vision problems took focus Wednesday at a hearing on whether he should stand trial over a decade later for a sexual encounter the woman says was not consensual.
“The report looks like something from LensCrafters that anyone could get in the mall,” scoffed Montgomery County Assistant District Attorney Roderick Fancher. “I don’t even know what to make of that.”
Fancher assured the Court of Common Pleas later that he has “nothing against LensCrafters.”
Judge Steven O’Neill was quick to rein in the zealous prosecutor at the close of the two-day hearing.
“Well, who gets to call legal blindness?” O’Neill asked. “A doctor would know more than you or me.”
Cosby, 79, wore a green tweed suit and was guided into the courthouse by an aid, carrying a cane in his left hand, as he has for most pretrial hearings.
In addition to claiming Cosby is legally blind and suffering from glaucoma, defense attorney Brian McMonagle says Cosby suffers memory problems in his advanced age.
O’Neill scolded both prosecution and defense for not having presented any case law involving a defendant with failing eyesight.
Fancher explained that “there is nothing saying that [Cosby’s] eyesight is worse than it was in 2005, with no baseline.
“His eyesight is irrelevant under a pre-arrest standard,” the prosecutor added.
Arguing otherwise, the defense says Cosby’s health problems compound the prejudice of the long delay to trial. Cosby is accused of drugging and assaulting Andrea Constand at his Cheltenham, Pa., home in 2005.
Though Constand reported the encounter to police in 2005, Montgomery County had opted not to prosecute at the time, and he was not arrested until late last year.
O’Neill interrupted when Fancher tried to say that Cosby has evaded prosecution in countless other cases because of statute of limitations. “Woah, I’ve got to stop you there,” the judge said. “Let’s not state opinions, I want the facts. Give me another closing.”
In the lead-up to Cosby’s arrest, dozens of women came forward with allegations, dating back to the 1970s, about Cosby drugging and raping them.
Constand, the only one whose claims are not barred by the statute of limitations, reached a settlement with the comedian to drop civil claims in 2005. Though the details of that case had been under seal for roughly a decade, a federal judge determined last year that the mounting allegations justified opening the case up to public scrutiny.
Cosby was arrested shortly after the release of his 2005 deposition testimony in which he admitted to buying quaaludes to give to women before having sex with them.
Defense attorneys for the comedian say that Cosby only agreed to that deposition based on the assurances of the Montgomery County district attorney in office at the time, Bruce Castor.
There is little proof of a concrete agreement by Castor not to prosecute, however, and the man who represented Cosby in that case, Walter M. Phillips Jr., is now dead.
Defense attorney McMonagle emphasized this point in his closing arguments to the court Wednesday.
“The best key witness we had, who could have said he was there when the promise was made,” McMonagle yelled, “we can’t call because unfortunately he’s dead!
“Because they,” McMonagle continued, pointing at the prosecutors, “waited 11 years to bring any charges.”
Just two years out of law school, ADA Fancher insisted that prosecutors were within their rights to reopen the Constand case when the details of Cosby’s deposition emerged.
“He admitted to using powerful drugs to sexually assault women,” Fancher said. “Evidence like this made us revisit this case.”
It is the state’s duty to renew an investigation when new information and evidence is discovered, Fancher added, saying the claim of harm from a pre-arrest delay “is unfounded and doesn’t make any sense.”
As for Castor’s supposed offer to Cosby’s longtime attorney, Phillips, Fancher said “an undocumented promise of immunity is impossible to believe.”
Cosby’s attorney also complained about the political tinges to the prosecution, saying his client’s “rights have been trampled by ego.”
Angela Agrusa, a Los Angeles-based defense attorney with Liner Law, claimed that Montgomery County District Attorney Kevin Steele only focused on Cosby because he was running for office.
“This case is not about depositions, it’s about prosecutorial change of policy … and about his [Cosby’s] right to a fair trial,” Agrusa said.
The attorney then played a video from Steele’s 2015 campaign in which the candidate made blatantly references to Cosby and said ex-DA Castor did not prosecute Cosby when he had the chance and the evidence.
“It was in his campaign that he platformed that he would be tougher on sexual predators, like Mr. Cosby, claiming his opponent Castor did not do his job,” Agrusa argued.
As part of that same campaign, Agrusa added, Steele “vilified [Castor], calling him a liar.”
Agrusa also showed newspapers articles from September 2006, February 2006 and November 2006 to show there were reports in the media about the settlement of Cosby’s civil case.
“The final report from the Montgomery County DA in 2005 said, ‘Case closed. No Charges,'” the attorney argued.
Agrusa called Constand an unreliable source, saying “she could not even consistently testify when the event occurred.”
“She did not make a formal complaint and she did not gather evidence,” the attorney continued. “There was an entire year gap between her report and the alleged incident. Additionally, there was an enormous number of contacts she had with Mr. Cosby and the fact that she contacted a civil lawyer first, impacted her credibility.”
As for Cosby’s failing health, Agrusa said the former comedian “cannot even look at a photo or evidence because he is legally blind.”
The prosecution wants to bring in women who claim Cosby attacked them in the past — some as many as 50 years ago.
The defense wants an evidentiary hearing to have these women excluded from the current case.
DA Steele fought back, referencing motions that the defense has filed with the names of alleged victims.
“This is just another attempt for them,” he said, pointing at the defense, “to take our offer so they can go, to put it in a motion and make our information public.”
Judge O’Neill told the prosecutor to toughen up. “This was just their attempt to intimidate you,” he said.
“If you don’t want information released to the public,” the judge added, “you must make a motion to do so.”
McMonagle fired back, saying these women are “accusers” not “victims.”
Judge O’Neill interrupted. “I don’t need a passion meter,” the judge told McMonagle.
With no ruling in sight, the next set of pretrial hearings are scheduled for Dec. 13 and 14.
June 2017 will be the latest possible start date of a trial.
Pool photos via Philadelphia Inquirer staff photographer Ed Hille.
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