NORRISTOWN >> Bill Cosby’s civil deposition testimony that he obtained Quaaludes in the past to give to women with whom he wanted to have sex can be heard by a jury that will weigh the actor’s fate on criminal charges he sexually assaulted a woman in 2004, a judge has ruled.
“This court finds that there is no Constitutional barrier to the use of the defendant’s civil deposition testimony,” Montgomery County Judge Steven T. O’Neill wrote in an order Monday, denying Cosby’s request to prevent prosecutors from using the testimony as evidence at his upcoming criminal trial.
The ruling is considered a major legal setback for Cosby, 79, who faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with his alleged contact with 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.
District Attorney Kevin R. Steele claims Cosby provided incriminating testimony connected with a 2005 civil suit brought against him by Constand and argued a jury should be permitted to hear that testimony.
“Allowing the jury to hear Mr. Cosby’s deposition testimony is another step forward in this case and will aid the jury in making its determination,” Steele reacted to the judge’s decision on Monday. “It’s important that we are able to present all of the evidence available and Judge O’Neill’s ruling allows us to make this evidence part of the upcoming trial.”
In that deposition, Cosby, according to court documents, admitted that in the past he obtained Quaaludes to give to women with whom he wanted to have sex. Prosecutors contend Cosby also admitted for the first time to developing a romantic interest in Constand when he saw her at a Temple basketball game and to having sexual contact with Constand.
Cosby has suggested the contact was consensual and he and his lawyer Brian J. McMonagle had asked the judge to prevent his civil deposition from ever being heard by a jury.
While Steele contends the incriminating testimony is admissible, McMonagle argued at a hearing last month that Cosby relied on a so-called 2005 “non-prosecution promise” provided by former District Attorney Bruce L. Castor Jr. when he agreed to testify in the civil suit brought by Constand and therefore any evidence derived from his deposition cannot be used against him.
But Steele and co-prosecutor M. Stewart Ryan argued there was no previous, valid non-prosecution promise and that Castor did not promise Cosby that he would never be prosecuted. Prosecutors contend that even if Castor had made such a representation, and even if Cosby had relied on it, his reliance was unreasonable.
Ryan suggested that over the years in email messages, press releases and testimony, Castor made inconsistent statements regarding the alleged non-prosecution promise.
O’Neill concluded “that there was neither an agreement nor a promise not to prosecute, only an exercise of prosecutorial discretion,” memorialized in a Feb. 17, 2005, press release issued by Castor.
“There is no basis in the record to support the contention that there was ever an agreement or a promise not to prosecute the defendant. Because there was no promise, there can be no reliance on the part of the defendant and principles of fundamental fairness and due process have not been violated,” O’Neill wrote in his “conclusions of law” attached to his decision.
The case represents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime despite allegations from dozens of women who claimed they were assaulted by the entertainer.
It’s not the first time the defense strategy has hinged on the so-called “non-prosecution promise.”
In February, McMonagle raised the alleged 2005 Castor promise to try to have the charges dismissed against Cosby, but O’Neill rejected that argument then.
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 contend 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 claim Steele “repudiated the agreement” and based the criminal charges lodged against Cosby last December on testimony Cosby gave during the deposition connected to the civil suit.
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 was exposed.
If convicted of the charges at trial, William Henry Cosby Jr., as his name appears on charging documents, faces a possible maximum sentence of 15 to 30 years in prison. He remains free on 10 percent of $1 million bail, pending trial.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.