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Cosby Assault Hearing Makes Little Headway

NORRISTOWN, Pa. (CN) — Abruptly ending debate on whether to dismiss Bill Cosby's indecent-assault charge, a judge ordered prosecutors and the comedian's attorneys to reconcile their differences on disputed issues of fact.

"There is too much information here, and counsel needs to come to an agreement before we move forward," said Judge Steven O'Neill, just halfway into what should have been a full-day hearing at the Montgomery County Court of Common Pleas.

Cosby, 79, wore a sleek black suit to the hearing, clutching an aide with one hand and a cane in the other as he made his way around the courthouse.

The comedian's attorney, Brian McMonagle, has said Cosby is nearly blind and suffers memory problems in his advanced age, making it highly prejudicial for prosecutors to have waited over a decade to bring the charges at issue.

Cosby is charged with drugging and assaulting a woman named Andrea Constand at his home in Cheltenham, Pa. Though Constand reported the encounter to police in 2005, Montgomery County had opted not to prosecute at the time.

Dozens of women came forward with similar allegations last year, dating back to the 1970s, but Constand is the only one whose claims are not barred by the statute of limitations.

Attorneys for Cosby say the delay is still unfair and that their client is being punished for deposition testimony he gave under the understanding that he would not face prosecution.

Back in 2005 — when Constand had been unable to bring criminal charges against Cosby — she reached a settlement with the comedian to drop civil claims.

This case had been under seal for roughly a decade when a federal judge determined that it was in the public interest to release deposition testimony in which Cosby admitted to buying quaaludes to give to women before having sex with them.

Tuesday's hearing concerned an October motion to dismiss, but Cosby's motion to suppress evidence remains unresolved after it was the focus of a September hearing.

Defense attorney McMonagle balked at today's hearing every time prosecutors referenced the 2005 deposition.

When Judge O'Neill tried to have the attorney specify the materials he wants suppressed, McMonagle said they want the deposition suppressed "in its entirety."

O'Neill called a recess then for the attorneys to confer in a boardroom, off the record and without the judge's presence, about what can be accepted in court as "statement of fact."

The defense claims that another prejudicial side effect of the long crawl to trying Cosby is that Walter M. Phillips Jr., the attorney who defended Cosby back in 2005, is dead.

Phillips, they say, would back up Cosby's claim that prosecutors promised him whatever he said in the civil case could not haunt him criminally.

"They already cut their deals, years ago," said McMonagle, an attorney with the Philadelphia firm McMonagle, Perri, McHugh & Mishak.

"Good lawyers relied on that promise," he added.

Judge O'Neill brought up testimony to this effect he heard at a February hearing from Cosby's general counsel, John Schmitt, and from Bruce Castor, a former Montgomery district attorney who had been the one not to try Constand's case.

"All we have today is a press release and testimony from Bruce Castor and Jack Schmitt." Judge O'Neill noted this morning.

"You're right," McMonagle said, "because they waited 12 years to bring these charges."

Assistant District Attorney M. Stewart Ryan countered that "a promise or a conveyance" never happened, but Castor read for the court a letter Castor sent in 2005 that calls this into question. "I see no possibility that Cosby's deposition could be used in a future state criminal case, because the deposition would be subject to suppression," Castor had said.

McMonagle also quoted Castor testifying in the 2015 hearing about being a sovereign. "I made a decision that Mr. Cosby would never be prosecuted," Castor had said.

Ryan said the credibility of the 2005 statement is undermined by contradictions in Castor's 2015 testimony.

Though Castor initially said the press release was intended to explain the situation to the press, the attorneys and the litigants, Ryan said he contradicted this later by saying that the press were never supposed to understand the release and that it was only intended for the attorneys.

"There is no degree of reasonable reliance," Ryan said.

Cosby's defense attorney stood in response. Pointing at the prosecution's table, McMonagle said "they are trying to distance themselves from Castor, their own witnesses, who they called a year ago."

McMonagle added that Castor "took a pass on this case for a lot of different reasons ... and he didn't have to put anything in writing because my client was never charged."

The attorney also made sure to reference his claim that the charges against Cosby are political.

Just a month before bringing the charges at issue, District Attorney Kevin Steele had defeated Castor in an election. Cosby's prosecution had been a bitter point of contention on the campaign trail.

Indeed, a civil complaint that Castor faces from Constand says the former DA defamed her to make himself look good to voters.

In addition to this week's proceedings, the court will also hold pretrial hearings for Cosby's case on Dec. 13 and 14.

After the afternoon recess, Tuesday's proceedings resumed unexpectedly for an hour at 4 p.m. Wednesday's hearing begins at 9 a.m.

Pool photos via Philadelphia Inquirer staff photographer Ed Hille.

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