Cosby Fights to Suppress Recorded Phone Call

NORRISTOWN, Pa. (CN) — The judge presiding over a sexual-assault charge against Bill Cosby insisted Tuesday on listening to evidence the state wants to use from a secretly recorded phone call.

Cosby, 78, appeared calm at the 1 p.m. hearing. The comedian, who has been battling glaucoma, wore a blue and white tweed suit, and was escorted into the courtroom by an aid.

Though defense attorney Brian McMonagle said Cosby is "legally blind," Montgomery County Judge Steven O'Neill refused to waver on his demand that Cosby appear in all court proceedings.

The court "will accommodate him as needed," O'Neill told the attorney with the firm McMonagle, Perri, McHugh & Mischak.

Tuesday's hearing concerned Cosby's motion to suppress evidence of his 2005 phone call with Gianna Constand, the mother of the woman Cosby is accused of drugging and assaulting at his Cheltenham, Pa., home a year earlier.

At the time of the call, Cosby was in California and the Constands were in Canada.

Though she had lived in Pennsylvania at the time of her alleged assault — working at Temple University — Cosby's accuser Andrea Constand withdrew to her family home in Pickering, Ontario, in its wake.

The state's response brief includes a transcript of the phone call, quoting Cosby as offering to "pay for school or whatever," referencing Constand's graduate school, so long as she "maintained a 3.0 GPA."

Cosby said he had no idea Gianna Constand was recording the conversation, and that Pennsylvania's wiretap law says both parties to a conversation must give consent for a recording. Canadian law meanwhile allows for one-party consent.

"This whole thing stinks and we should throw it out," attorney McMonagle told the court.

Urging the court to apply Pennsylvania law, McMonagle noted that Cosby and Constand were both residents of Pennsylvania at the time of the incident, and that the incident happened in Pennsylvania.

"We should not be applying the law of some foreign country," McMonagle said.

District Attorney Kevin Steele said the conversation itself shows that Cosby knew he was being recorded.

The transcript shows that Cosby asked Constand's at one point about suspicious beep sounds during the call.

Though Constand's mother said the noise came from a parrot, Steele said Cosby was later asked about the beeping in a deposition and said he thought he was being recorded.

"It's unequivocal," Steele said. "He knew of the recording, but deliberately continued with the conversation. ... He talked anyway, and made admissions."

Judge O'Neil fired back, saying Cosby could have had no clue he was being recorded, and been told later to admit it.

If his argument about Cosby's consent fails, Steele hopes the court will apply Canadian law. The conversation "was lawfully recorded in Canada and should be used in this case," Steele said, despite McMonagle's request to suppress it.

O'Neill insisted on hearing snippets from the call after a short recess this afternoon. "I need to hear to decide if I will consider it, to let it into evidence at trial," the judge said.

Steele also told the court Tuesday that the commonwealth is "ready to go to trial."

McMonagle has said he cannot be available for trial until June, citing a "large inventory of cases," but O'Neill said he wanted to move the case along.

"I wanted to try to bring this case to a trial track so we can get resolution," O'Neill said. "A person has a right to a fair trial and should be tried within 365 days from the filing."

This schedule would have Cosby tried by Dec. 29, 2016 — "but it does not look like this case will be tried before that date," O'Neill said.

The judge said "this court will do everything in its power to give the defendant his right to a speedy trial, despite all the procedural matters that need to be taken."

Judge O'Neill explained that all motions, including a second motion by Cosby to suppress 2005 deposition testimony, will be heard at a later pretrial hearing.

McMonagle acknowledged that he was making two additional motions to investigate witnesses. Judge O'Neill gave him 30 days.

McMonagle also discussed plans to file a motion for change of venue. He noted that Steele discriminated against Cosby while campaigning to be DA of Montgomery County by referring to the comedian as a "sexual predator."

"He is innocent until proven guilty," McMonagle said.

Judge O'Neill gave McMonagle 60 days to file the change-of-venue motion.

Motions by the state took focus this afternoon as well — specifically a 404(b) motion to present testimony of 13 alleged incidents.

O'Neill said "it appears to have the accounts of 50 possible assaults, and 13 that the commonwealth is asking the court to consider."

"However, there is no disclosure of names attached to those accounts," the judge noted.

"We will have to see if I admit that to be heard," O'Neill added.

In light of scheduling and motions, Judge O'Neill announced a trial date, "if and when we get to that time," tentatively for June 5, 2017.

Cosby's next hearing date will be scheduled later this week when Judge O'Neill rules on the motion.

Cosby has pleaded not guilty to the charge against him.

Constand tried to press criminal charges against Cosby back in 2005 but reached a civil settlement with the comedian when the state refused to prosecute. Interest in the case surged roughly a decade later when comedian Hannibal Buress went viral with a stand-up bit about Cosby's image.

Dozens of women with stories like Constand's came forward in the following months, describing encounters at odds with the Dr. Huxtable image dating back to the 1970s.

The frenzy led prosecutors to reopen Constand's case just before the 12-year statute of limitations was to lapse.

Constand remains the only alleged Cosby victim to hurdle the statute of limitations.

Captions for top-right photos:

Pool photos via Michael Bryant with the Philadelphia Media Network.

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