NORRISTOWN, Pa. (CN) – Arguments became heated Monday afternoon as prosecutors fought to have the jury in Bill Cosby’s upcoming assault trial hear the comedian, in his own words, say that he gave women quaaludes before having sex with them.
“Cosby was asking if he used quaaludes with other women, and he responded ‘yes,'” Assistant District Attorney M. Stewart Ryan told the court. “That is what makes it relevant.”
Cosby made the infamous quaalude admission while being deposed in 2005 for a civil case involving Andrea Constand, the only one of Cosby’s dozens of accusers dating back to the 1970s whose criminal assault claims are not barred by the statute of limitations.
Because 79-year-old Cosby admits only to giving Constand a Benadryl, which he says she ingested willingly, the defense says the quaalude evidence opens the door to women whose testimony the court has barred.
“What does quaaludes have to do with Andrea Constand?” defense attorney Brian McMonagle asked the court at Monday’s pretrial hearing. “Well, nothing.”
“What the prosecution wants to do in this case is try everything else, the 1970s, 1980s, 1990s,” added McMonagle, an attorney with the Philadelphia firm McMonagle, Perri, McHugh, & Mishak.
McMonagle said the quaalude admission is linked to a woman identified only as Accuser Number Four, a woman with whom Cosby claims he had a consensual sexual relationship.
Judge Steven O’Neill ruled earlier this year that he would not allow Accuser Number Four to testify when Cosby goes on trial this June at the Montgomery County Court of Common Pleas for Constand’s alleged assault.
McMonagle said this makes the quaalude evidence inadmissible.
“They are just trying to smear,” he argued. “If you introduce these statements in a vacuum, then the defense, we will have to defend it, and now we are knee-deep in Accuser Number Four.”
Judge O’Neill seemed skeptical. “But they’re not saying, ‘we want to call the witness to corroborate,’” O’Neill said, of the prosecution. “It’s his words! Isn’t this relevant?”
McMonagle disagreed. “They are spinning it,” he exclaimed.
“Quaaludes taken 30 years prior with someone else is not relevant for a separate instance that happens in 2004 and that he was charged for in 2014,” McMonagle added.
ADA Ryan countered that the deposition provides “context and included information about references to quaaludes.” The jury should be allowed to consider the deposition since it provides a critical perspective “of an individual who freely admits to facilitating sexual assault by administering an intoxicant,” Ryan added.
O’Neill appeared more receptive to the defense’s arguments involving references to a date-rape drug in Cosby’s 2004 nonfiction book “Childhood.”
“Spanish Fly,” Cosby wrote, “an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert.”
In addition to the relevant chapter, the prosecution wants to introduce comments Cosby made while promoting his book on “The Larry King Show.” Cosby had said “all boys from age 11 on up to death” will be searching for Spanish Fly.
O’Neill seemed skeptical with the commonwealth’s attempt to put the quaalude and Spanish Fly comments in the same class of evidence.
“I cannot presume relevance,” O’Neill said. “I see the contents of this as not relevant,” he added.
Ryan fired back: “He used chemicals to put women ‘in the mood’ of having sex with him, and I would suggest this falls into a narrow class … of self-incrimination.”
When Cosby’s trial kicks off on June 5, it will feature a sequestered jury chosen from Allegheny County. Pittsburgh is the county seat in Allegheny, which is about 300 miles from the site of Cosby’s trial in Norristown, Pennsylvania.
O’Neill said the court will begin jury selection two weeks before the trial begins, interviewing 125 jurors a day and using the standard questionnaire, before the option for peremptory strikes.
Cosby’s legal team are asking to prescreen up to 2,000 potential jurors and increase the number of peremptory strikes to 20. On Monday morning, defense attorney Angela Agrusa argued that, to get a fair and impartial jury, a 16-question standard form is “not sufficient” for this case.
Judge O’Neill adjourned the hearing after ruling Monday to keep the standard questionnaire.
He also refused to grant more than seven peremptory strikes.
The accuser in the case, Andrea Constand, says she became friends with Cosby while working at Temple University, where Cosby was a trustee. She claims that Cosby, who turns 80 in July, drugged and raped her at his Cheltenham home in 2004.
Prosecutors wanted 13 of Cosby’s other accusers to testify at the Constand trial, but Judge O’Neill agreed to let a only a woman identified as Accuser Number Six tell her story.
O’Neill warned the parties that they have only 15 days more to file any motions on existing issues. “I wanted this to be the last one, but I recognize that it may not be,” the judge said of pretrial hearings.
The judge had voiced exasperation earlier at the hearing.
”I am trying to give you timely orders here, so we can move onto Allegheny County and start selecting the jury,” O’Neill said. “When are you going to get it done? It’s been a year and a half!”
“The deposition is 12 years old now,” O’Neill added. “We were supposed to be done with this today!”
Prosecutors and the defense did come to an agreement about the settlement Constand reached with Cosby in her civil case.
“We will agree to exclude the settlement, but not the fact that she filed a lawsuit against him,” McMonagle said.