Bill Cosby’s new set of attorneys urged a Montgomery County judge to exclude from his upcoming retrial all of his prior statements about using Quaaludes with women he wanted to have sex with, saying what he did in the 1970s has “no relevance” to the criminal charges against him.
“There’s no admission from Mr. Cosby that he drugged and assaulted women,” defense attorney Becky James argued. “In fact the opposite was true. In the deposition testimony he described it as being a party drug. It was known as ‘disco biscuits’ back in the 1970s.”
Montgomery County Assistant District Attorney Stewart Ryan disagreed, saying those admissions go to the heart of former Temple University employee Andrea Constand’s drugging and sexual assault allegations against Cosby, which are the subject of the criminal case against him.
“No one can be certain what Ms. Constand was given that night,” he said. “What we have is testimony about the defendant obtaining a central nervous system depressant, using it for a particular purpose than having a familiarity with it. He used these Quaaludes much as someone would use a [spiked] drink.”
Cosby, now 80, made the Quualude statements during depositions taken in Constand’s 2005 civil suit against him, which he settled for an undisclosed amount in October 2006.
Montgomery County Judge Steven O’Neill allowed limited portions of the Quaaludes testimony to be used in Cosby’s trial last June, which ended with a hung jury—but has made no decision yet about its use in the retrial.
That evidence could be even more charged in the retrial given the judge’s recent ruling allowing five other accusers to testify about Cosby allegedly drugging and sexually assaulting them, James argued.
“The circumstances have changed,” James said. “This evidence is even more prejudicial than it was in the last trial.
Cosby, wearing a dark suit with a red tie, nodded in agreement as James rattled off her reasons for wanting to have the testimony excluded.
O’Neill seemed to be leaning toward waiting to rule on the Quaaludes issue until trial.
“The only way I’m going to know the context of unfair prejudice will be during the trial,” he said. “I don’t know what the cross examination of the five witnesses will be.”
However, James urged him to make a decision before then.
“If this testimony is referenced in the opening statements it will be very hard to unring that bell,” she said.
James also objected to the prosecution’s plan to have 14 witnesses ready to testify (if necessary) to support the testimony of the five other accusers.
“The issue is …turning this trial into a whole series of mini trials,” James said. “It’s a very serious concern. We have the potential to have up to 14 additional witnesses. That would clearly dominate this trial on matters that really have no bearing with what the jury is being asked to do.”
Montgomery County District Attorney Kevin Steele said the witnesses are “conditional” and will be called upon only if the defense challenges the five accusers on details of their story.
“If a witness under direct examination says, ‘I made it back to my house. I was asleep in the car…and that’s where my roommate found me’ and they say, ‘Well, that didn’t happen.’ Then we can bring the roommate in to say, ‘Yes. That’s what happened.’”
O’Neill said he can’t rule on that issue until the trial begins.
Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting Constand, now 44, at his Elkins Park, Pennsylvania mansion in January 2004. Last June, Judge O’Neill declared a mistrial after jurors were unable to come to a unanimous decision after 52 hours of deliberations. Jury selection for his retrial is currently scheduled to begin on Monday, April 2 with opening arguments on Monday, April 9.
O’Neill has said he expects the trial to last a month. Cosby has denied Constand’s allegations as well as similar ones from more than 60 women.
Cosby’s defense team also made argument on behalf of their motion to exclude the tape of a January 2005 phone call between Cosby and Andrea’s mother, Gianna, in which Cosby offered Andrea an educational trust.
The two sides also butted heads Thursday afternoon over what, if anything, from Constand’s 2006 civil suit against Cosby can be used at trial. O’Neill was given a copy of the settlement agreement itself on Thursday afternoon, though it was not put into the record, and gave it back to the defense on Friday.
Ryan argued that if the amount of the settlement is allowed, then the settlement negotiations should be as well because he believes those details show Cosby’s guilt.
“He demands that she absolve him of criminal liability,” Ryan said. “He demands that she refuse to cooperate with police and when he knows these things are illegal because they are obstruction of justice, he settles for, ‘Well, you can’t initiate with police.’
“They determined they would try to do what they could by destroying the files,” he said. “These things, I would suggest, are not consistent with the behavior of a person who thinks he is innocent.”
Defense attorney Kathleen Bliss objected, while noting that’s a “one-sided” account of the negotiations. Cosby’s team wants the amount of the settlement to be included at trial because it goes to the heart of their defense — that Constand made up the allegations to get money from Cosby.
“The point is Andrea Constand had a motive,” Bliss said. “And guess what? It paid off ... That’s our theory and that’s what we want to present because we have a right to.”
O’Neill said he would rule Friday on whether to grant the defense’s request to have Temple employee Marguerite Jackson testify. Jackson claims Constand spoke to her about wanting to set up a “high-profile” person for drugging and sexually assaulting her the year before she went to police. O’Neill ruled her testimony was “hearsay” and thus inadmissible at the first trial after Constand said she did not remember her.