Who Will Show Up to Watch Cosby's Legal Drama?

All eyes, from legal experts and celebrity-watchers to local residents just seeking to satisfy their curiosity, will be on actor Bill Cosby, who turns 80 in July, and former Temple University athletic department employee Andrea Constand, 44, this week as they come face-to-face for the first time in decades during a high-profile legal drama.

Bill Cosby at Montgomery County Courthouse/Photo by Carl Hessler Jr.

I suspect you’ll be able to hear a pin drop as Constand, now a massage therapist in Canada, walks to the witness box to confront Cosby with her allegations that he sexually assaulted her at his Cheltenham mansion after plying her with blue pills and wine in early 2004.  It will be a dramatic moment to soak in.

But there are other moments and people to watch for during this trial.

Camille Cosby

Will she or won’t she make an appearance? That is the question on the minds of many when it comes to Cosby’s wife of more than 50 years. During the 18 months of pretrial legal wrangling that ensued since Cosby’s December 2015 arrest, Camille has not appeared with her husband’s entourage at the Montgomery County courthouse. She’s been noticeably absent and the times I’ve been asked by people, “Was Camille there?” are too numerous to count. Time will tell.

If Mrs. Cosby does make an appearance, watch for the media and any Hollywood paparazzi on site to go wild.

Courtroom observers also will be looking for appearances by Cosby’s daughters, Erinn and Ensa, who have publically supported their father during recent interviews leading up to the trial.

Bruce Castor Jr.

Will the former county district attorney who chose not to charge Cosby with any crimes in 2005 make an appearance during the trial? It’s unclear if the defense team will call him as a witness.

During an intense pretrial hearing last year, defense lawyer Brian J. McMonagle argued Cosby had a so-called 2005 “non-prosecution promise” from Castor. McMonagle raised the alleged 2005 Castor promise to try to have the charges dismissed against Cosby, but Judge Steven T. O’Neill rejected that argument and moved the case forward.

Bruce L. Castor Jr./Submitted Photo

Castor, district attorney from 2000 to 2008, previously claimed there wasn’t enough “reliable and admissible” evidence to criminally charge Cosby in 2005.

Cosby’s lawyers contended the 2005 non-prosecution promise was made for the express purpose of inducing Cosby to testify in Constand’s civil litigation against him, removing from him the ability to claim his Fifth Amendment protection against self-incrimination, “thus forcing him to sit for a deposition under oath in a civil case” in 2005 and 2006.

Defense lawyers claimed District Attorney Kevin R. Steele “repudiated the agreement” with Castor and based the criminal charges lodged against Cosby on testimony Cosby gave during the deposition connected to the civil suit. Steele argued there was no non-prosecution promise.

Cosby was deposed in connection with the lawsuit over four days in September 2005 and March 2006. The suit ultimately settled for an undisclosed amount on July 13, 2006.

Current prosecutors reopened the criminal investigation in July 2015 after portions of Cosby’s deposition connected to the civil suit were unsealed by a federal judge and his alleged damaging testimony, that he previously gave quaaludes to women with whom he wanted to have sex, was exposed.

Castor has been known to show up at some other high-profile trials. Last year, he made a surprise appearance at the obstruction trial of former state Attorney General Kathleen Kane. Will he show up at Cosby’s trial? I’ll let you know if there’s a sighting.

ALLEGED ‘PRIOR VICTIM NUMBER SIX’

In February, O’Neill ruled prosecutors can present the testimony of “prior alleged victim six” at Cosby’s trial. Steele had asked the judge to allow a total of 13 other women who accused Cosby of uncharged sexual misconduct to testify at the trial, but O’Neill ruled 12 of the women cannot testify.

Bill Cosby 2015 Arrest Photo/Courtesy Montco DA's Office

O’Neill’s ruling was considered one of the major pretrial legal decisions in the Cosby case. Legal insiders believed the key to the prosecution’s case against Cosby was the admissibility of evidence involving alleged accusers who came forward after Constand’s allegations came to light in 2005.

“Victim six,” the one O’Neill will allow to testify, is identified in court papers as a 29-year-old woman who met Cosby around 1990 and was an assistant to Cosby’s personal appearance agent at the time. 

The woman claimed Cosby sexually assaulted her during a lunchtime meeting in 1996 at the actor’s bungalow at the Bel Air Hotel in Los Angeles after offering her some red wine and a white pill to relax, according to court papers. The woman claimed she became incapacitated and was unable to consent to or to resist Cosby’s unwanted sexual advances, prosecutors alleged.

GLORIA ALLRED

The well-known celebrity lawyer from Los Angeles has been present at numerous Cosby pretrial hearings and she represents many of the 13 other alleged Cosby accusers that prosecutors sought to have included at the trial.

Gloria Allred/Photo by Carl Hessler Jr.

McMonagle and co-defense lawyer Angela C. Agrusa previously argued many of the women represented by Allred launched media campaigns, making their claims suspect.

Allred has often stepped to a podium outside the courthouse to address the press after the pretrial hearings. Everyone will be watching to see if Allred is accompanied to court by any of her clients.

Stay tuned. Cosby’s trial gets under way on Monday morning.

Once the trial begins, I’ll have daily reports for Digital First Media publications. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

Bill Cosby's Defense Team Grows As Trial Nears

Just days before his sexual assault trial begins in Montgomery County, entertainer Bill Cosby has added two more California lawyers to assist his defense team.

Lead local lawyer Brian J. McMonagle filed petitions in county court on Friday asking a judge to allow lawyers Delilah G. Vinzon and Ryan D. Austin, each of Los Angeles, to be admitted  “for the limited purpose of assisting in the representation” of Cosby.  

Vinzon is a partner in the Law Firm of Liner, LLP, in Los Angeles, while Austin is an associate in the firm, according to court documents.

Under Pennsylvania Bar Admission Rules, lawyers or advocates who are qualified to practice in the courts of another state may be “specially admitted to the Bar of this Commonwealth for purposes limited to a particular matter,” according to court documents filed by McMonagle.

Defense Lawyer Brian J. McMonagle/Photo by Carl Hessler Jr.

“Here there is no good cause for denial of the special admission of (Vinzon and Austin) to the Bar of the Commonwealth of Pennsylvania,” McMonagle wrote.

Judge Steven T. O’Neill, who is presiding over the trial, granted McMonagle’s requests on Friday.

Vinzon, who was admitted to the California Bar in 2002, and Austin, who was admitted to the California Bar in 2012, are associated with the same law firm in which lawyer Angela C. Agrusa is a partner. Agrusa joined the Cosby defense team as co-counsel with McMonagle last October.

Even though the judge granted the special admissions, “Mr. McMonagle remains the attorney of record in this case…,” court papers spell out.

Bill Cosby Leaves MontcoPa Court/Photo by Carl Hessler Jr.

Cosby’s trial gets under way on Monday morning.

William Henry Cosby Jr., as his name appears on charging documents,  faces three counts of aggravated indecent assault in connection with allegations he had inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his home along New Second Street in Cheltenham after plying her with blue pills and wine sometime between mid-January and mid-February 2004.

The charges were lodged against Cosby on Dec. 30, 2015, before the 12-year statute of limitations to file charges expired.

If convicted of the charges at trial, Cosby, an entertainment icon who remains free on 10 percent of $1 million bail, faces a possible maximum sentence of 15 to 30 years in prison.

Once the trial begins, I’ll have daily reports for Digital First Media publications. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

As Cosby Jury Selection Nears Montco Judge Issues Warning Against Jury Tampering

With Jury selection about to begin for the June 5 sexual assault trial of entertainer Bill Cosby, Montgomery County Judge Steven T. O’Neill gave one last stern-sounding warning to members of the media and the general public, focusing on the security of the jury panel.

Montco Judge Steven T. O'Neill/Submitted Photo

“Reporters and members of the general public are reminded that any attempt by anyone, without leave of Court, to communicate with a member of the jury panel respecting the case, until the conclusion of the case, may be punished as a criminal contempt of court,” O’Neill wrote in a court order issued on Friday.

Jury selection begins Monday at the Allegheny County Courthouse in Pittsburgh.

The judge added that during individual questioning of jurors, “the room may be cleared of reporters and members of the general public if the juror expresses a desire to answer a sensitive question in private.”

Indeed, the Cosby jury, a panel of 12 and six alternate jurors, likely will be subject to some of the tightest security that a jury has ever faced in Montgomery County. It is the most high-profile criminal trial to ever play out at the county courthouse in Norristown.

“Overall, our real focus is security, securing those jurors,” county Sheriff Sean P. Kilkenny told me during a recent interview. “We want to make it as safe and comfortable for the jurors. They are coming from Allegheny County, sacrificing everything being away from their families, and we want to make it as safe and comfortable for them as we can.”

Montco Sheriff Sean Kilkenny/Submitted Photo

 Judge O’Neill, prosecutors and Cosby’s team of defense lawyers will be at the Allegheny County Courthouse in Pittsburgh on Monday to begin selecting jurors. 

The selection process was moved after defense lawyers argued that closer to home prospective jurors had been subjected to pervasive media coverage that made it impossible to select a fair jury in Montgomery County.

Once the jurors are selected, they will be transported to Montgomery County and sequestered at an area hotel for the duration of the trial, which is expected to last at least two weeks.

Cosby, 79, faces three counts of aggravated indecent assault in connection with allegations he had inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home after plying her with blue pills and wine sometime between mid-January and mid-February 2004.

Once the trial begins, I’ll have daily reports for Digital First Media publications. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

Internet All Atwitter About Cosby and Race. But It Was Old News

The Internet was all atwitter this morning with blaring headlines that entertainer Bill Cosby suggested in an interview with a radio show host that racism may be playing a part in his sexual assault trial that is about to get under way.

My first reaction. I had to laugh at the barrage of news reports about the subject. Old news, I thought, as defense suggestions of racism were first reported last year.

In fact, The Mercury, The Reporter and the Times Herald were among the first publications to report last October that Cosby’s lawyers claimed they cannot ignore “the unfortunate role that racial bias still plays in our criminal justice system.” The claims were made in court documents I obtained.

Bill Cosby/Photo Courtesy Montco DA

“In a better world, racial bias would be a specter of the past, or, better yet, nonexistent,” lawyers Brian J. McMonagle and Angela C. Agrusa wrote in court papers in which they claimed Cosby is a victim of racial bias, an unfair media blitz and a prosecutors’ decade-old delay in bringing sexual assault charges against him.

The racial bias, Cosby’s lawyers suggested, was evident in the request by Montgomery County prosecutors to allow 13 additional women to testify at Cosby’s trial to bolster their contention that Cosby sexually assaulted Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home in 2004. The 13 women alleged to also have been the victims of Cosby’s inappropriate conduct between 1960 and 1990 and District Attorney Kevin R. Steele argued their testimony is relevant at trial to show Cosby’s behaviors “took on a form of a common plan, scheme or design.”

“Only one of those women self-identifies as African-American,” McMonagle and Agrusa claimed. “The commonwealth’s choice preys upon subconscious (or perhaps conscious) beliefs that a white woman is less likely to consent to sex with a black man, particularly in the 1960s and 1970s, the time period the commonwealth chose to focus on.

Defense lawyer Brian J. McMonagle/Photo by Carl Hessler Jr,.

“This turns the presumption of innocence that Mr. Cosby is entitled to into a presumption of guilt, and runs counter to the basic principles upon which the United States was founded,” the lawyers added.

McMonagle argued some of the 13 women have been paraded in front of the media by high-profile, civil rights lawyers like Gloria Allred, who represents some of the women.

“And the public jumps into a mob, willing to believe unsubstantiated, decades-old allegations against an African-American citizen who has spent the last half a century trying to foster an appreciation for the commonalities of every American, regardless of race, gender or religion,” McMonagle wrote. “There is no hope that Mr. Cosby can receive a trial free from outside influence in Montgomery County, as due process requires.”

Incidentally, a judge ruled against prosecutors, deciding that only one of the 13 other alleged women can testify at the upcoming trial.

Montco DA Kevin R. Steele/Submitted Photo

And it wasn’t the first time McMonagle invoked race in the case.  

After Cosby’s pretrial hearing Sept. 6, 2016, McMonagle said from the courthouse steps, “Mr. Cosby has spent his entire life trying to fight against injustice, trying to help other people overcome racism and prejudice,” and claimed the media has presumed Cosby guilty, not innocent.

“The media has championed the causes of his accusers with little thought to investigation, with little thought to exposing the motivations behind any accusations…,” McMonagle said at the time.

That same day, a Cosby spokesman fired off a statement expounding on the defense team’s claims.

“Mr. Cosby is no stranger to discrimination and racial hatred and throughout his career Mr. Cosby has always used his voice and his celebrity to highlight the commonalities and has portrayed the differences that are not negative - no matter the race, gender and religion of a person.

“Yet, over the last 14 months, Mr. Cosby and those who have supported him, have been ignored while lawyers like Gloria Allred hold press conferences to accuse him of crimes for un-witnessed events that allegedly occurred almost a half century earlier,” the statement read.

The spokesman claimed Cosby’s civil rights have been trampled upon and argued the campaign against him “builds on racial bias and prejudice that can pollute the court of public opinion.”

Bill Cosby Leaves Ccourt/Photo by Carl Hessler Jr.

Cosby, 79, faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with his alleged inappropriate contact with Constand.

Stay tuned. I’ll be reporting from the Cosby trial beginning June 5.

Spanish fly Focus of Debate in Montco Court

Never thought I’d see the day when there would be a legal debate in Montgomery County Court having anything to do with Spanish fly.

Sure, it’s previously been mentioned in pop culture, films, TV shows and music, but it’s been years since I’ve heard it mentioned in any kind of public forum. But all of a sudden, due to a few court filings in the Bill Cosby case, Spanish fly is making national news.

I learned a few things about Spanish fly this week from Cosby’s lawyers.

“According to Oxford University, Spanish fly is “[a] toxic preparation of the dried bodies of Spanish fly beetles, formerly used in medicine as a counterirritant and sometimes taken as an aphrodisiac.” An aphrodisiac is “[a] food, drink, or other thing that stimulates sexual desire,” defense lawyers Brian J. McMonagle and Angela C. Agrusa wrote in court papers.

McMonagle and Agrusa said Cosby, in his comedic material, developed jokes referencing the substance as an aphrodisiac, most notably in his 1969 album, “It’s True! It’s True!”

Brian J. McMonagle/ Photo by Carl Hessler Jr.

“The jokes make fun of the high libidos of thirteen-year-old boys and the way they gossip amongst themselves on how to get girls,” defense lawyers wrote, adding in 1991 Cosby authored a book, “Childhood,” which contained “a fanciful tale” of 13 year olds “on an urban quest to obtain the mythical substance to improve their chances with girls.”

In promoting that book, McMonagle and Agrusa said, Cosby appeared on Larry King’s CNN program and rehashed a version of the Spanish fly material that he had developed decades earlier and included in his book.

Montgomery County District Attorney Kevin R. Steele sees it a different way.

Montco DA Kevin Steele/Submitted Photo

Cosby’s words came back to haunt him this week when Steele filed papers seeking to use excerpts from Cosby’s book and the “The Larry King Show” as evidence at Cosby’s upcoming trial in connection with his alleged sexual assault of Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his Cheltenham home sometime between mid-January and mid-February 2004.

Steele argued the excerpts “are relevant to proving that (Cosby) had knowledge of a date-rape drug, and a motive and intent to use it on the victim” and also suggest Cosby “had a willingness and motive to push ‘chemicals’ to obtain sex from the otherwise unwilling victim.”

Steele, quoting from Cosby’s book, contends the actor recounted a memory from his youth in which he and his friends seek out “Spanish Fly, an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert.”

But McMonagle and Agrusa quoted another passage from 'Childhood' - “We were feeling the way that the soldiers of Ponce de Leon must have felt when they began to search for the Fountain of Youth” - to suggest that the antics to which Cosby referred “were centered on a Quixotic adventure through the minds of teenaged boys.”

“The story is about fantasy, not real life, legends created by the active imaginations of teenaged boys,” defense lawyers claimed. “Even one of the passages that (prosecutors) would like to use to condemn Mr. Cosby demonstrates the absurdity of this tale: trying to find ‘an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert’ is a comical way of signaling that the boys’ exploits were completely in the realm of fantasy – how else would a glamorous move star ‘surrender to’ a pre-pubescent boy in Philadelphia?”

Bill Cosby Arrest Photo

McMonagle and Agrusa said “Mr. Cosby’s Spanish Fly Shtick” is not a joke about assault, rape or drugging someone.

“The fact that the commonwealth is distorting humor into some menacing plot by divorcing it from its context is exactly the reason why the topic of Spanish fly should be excluded from trial,” McMonagle and Agrusa responded. “This is a form of artistic expression and social commentary. The vast majority of the material he developed over the last fifty years never happened in real life. It was for humor.”

So, is it a “mythical substance," a form of artistic expression and social commentary, the object of “the active imaginations of teenaged boys” and humor that prosecutors are “distorting,” as McMonagle and Agrusa contend?

Or is it a reference to a “date-rape drug” that suggests Cosby “had access to, knowledge of, and a motive and intent to knowingly use substances that would render a female unconscious for the purpose of engaging in sex acts,” as Steele contends?

Montco Judge Steven T. O'Neill/ Submitted photo

We could find out Monday what county Judge Steven T. O’Neill thinks when he holds a hearing to determine if the Spanish fly references made by Cosby will be evidence at his upcoming sexual assault trial.

Stay tuned.

Jury Selection: Bill Cosby and Peremptory Challenges

In court papers filed this week, lawyers for entertainer Bill Cosby asked a judge to lift the limits of a criminal rule of procedure to grant the defense team and prosecutors 20 peremptory challenges, each, when jury selection begins for Cosby’s sexual assault trial.

Bill Cosby Arrest Photo/Courtesy Montco DA's Office

Currently, Pennsylvania Rule of Criminal Procedure 634 dictates that, in trials involving a non-capital felony case, and when there is only one defendant, prosecutors and the defendant each are entitled to only seven peremptory challenges.

While impaneling a jury, the prosecution and defense can challenge the selection of a particular juror “for cause” – that is, the lawyer must show that a prospective juror isn’t qualified because a specific circumstance exists. For example, I’ve seen many people excused from jury service because they either had medical problems or knew witnesses and victims or a lot about a particular case.

But the prosecution and defense teams also can challenge a potential juror without having to give any specific reasons. For example, a lawyer may not like a juror’s answer to a particular question, a juror’s occupation, a juror’s manner or the tattoos they’re sporting. However, those challenges, known as “peremptory challenges,” are limited in number.

When lawyers run out of peremptory challenges they can be forced to accept jurors that they really don’t favor and so that’s why the selection process can be very tricky.

In Pennsylvania, in trials involving capital murder, and when there is only one defendant, each side is entitled to 20 peremptory challenges. In trials involving misdemeanors only, prosecutors and a defendant are entitled to five peremptory strikes.

Where the charge is felony aggravated indecent assault, of which Cosby is charged, each side is entitled to only seven peremptory challenges.

Defense lawyer Brian J. McMonagle, citing “the extraordinarily widespread media attention” garnered by the Cosby case, requested more than the usual seven peremptory challenges in his motion for jury selection protocol. Cosby wants 20 for each side.

Brian J. McMonagle/Photo by Carl Hessler Jr.

But District Attorney Kevin R. Steele objected to the request.

“Even if the commonwealth agreed to this scheme, which it will not, and even if the court wanted to permit additional peremptory strikes, the limits set by Rule 634 are firm and final,” Steele wrote in court papers. “It is well-settled and easily found precedent that the right to peremptory challenges is established by law, and the trial court does not have the power to increase the number of challenges. This is true even in high-profile cases where the defendant may believe they are entitled to special treatment.”

Montco DA Kevin R. Steele/Submitted Photo

“Therefore, no matter how many additional peremptory strikes defendant may think he needs or is entitled to, he is not permitted to have more than any other similarly situated criminal defendant,” Steele continued. “Defendant is not entitled to, nor does he deserve, anything more or anything less than any other citizen facing criminal charges.”

After reading Rule 634, I would have to agree that it appears trial judges don’t have the discretion to increase the number of peremptory challenges unless it is a trial that involves joint defendants.

Stay tuned. Judge Steven T. O’Neill holds a hearing on Cosby’s request to lift the limits on peremptory challenges on Monday, April 3.

While peremptory challenges have been part of the justice system for hundreds of years and while some argue peremptory challenges are necessary to remove biased jurors, I never thought peremptory challenges were realistic, believing they allowed lawyers to hide under the umbrella of not having to state a cause and still preclude jurors because they didn’t like their gender or race.

In a 1986 U.S. Supreme Court case, Batson v. Kentucky, the high court ruled lawyers cannot use peremptory challenges to dismiss jurors based simply on their race.

Should peremptory challenges be eliminated altogether from the U.S. jury selection process? I would love to know what you think. Feel free to leave your comments below.

Deputies Rocked Those Socks!

Some of Montgomery County’s finest public servants showed their compassion for others and supported a good cause by sporting some outrageous, yet fashionable, mismatched socks under their uniforms for one day last week.

Deputy Kayla M. Lochner-Franz Rocks her Socks/ Photo by Carl Hessler Jr.

County Sheriff’s Department staffers participated in the annual “Rock Your Socks World Down Syndrome Day” campaign on March 21, 2017, to raise awareness about Down syndrome, a genetic chromosomal disorder. The idea to participate came from Deputy Kayla M. Lochner-Franz whose uncle, Mike, had the syndrome.

Montgomery County Sheriff's deputies support "Rock Your Socks World Down Syndrome Day"/ Photo courtesy sheriff's department

“It’s an honor to do it every year. I like to keep carrying on awareness in memory of him,” said Lochner-Franz, adding her uncle, who grew up in the Manayunk area of Philadelphia, passed away at 51 years of age.

Lochner-Franz explained the campaign encourages people to find creative ways to advocate for the rights of those with Down syndrome and to celebrate the wonderful things about people with the syndrome.

Photo Courtesy Montco Sheriff's Dept.

About a dozen deputies participated in the “Rock Your Socks” campaign and they had to contribute to a Down syndrome charity in order to get permission to don their colorful socks.

World Down Syndrome Day is held on the 21st day of the third month, which signifies the uniqueness of the triplication of the 21st chromosome, which leads to Down syndrome, according to the Down Syndrome Association of Delaware.

The colorful socks certainly were fun to look out and created a buzz at the courthouse but more importantly they brought awareness to a worthy cause.

Photo Courtesy Montco Sheriff's Dept.

Once again, sheriff’s deputies went above and beyond to show their compassion for and support of others. I commend you on your dedication and kindness. Thanks for all you do.