3:44pm PT by Eriq Gardner
Bill Cosby to Argue His Due Process Rights Are Being Violated
Bill Cosby is set to once again argue that he deserves to escape prosecution for allegedly sexually assaulting former Temple University employee Andrea Constand.
A new motion to dismiss is being filed that contends the long delay by the Montgomery County District Attorney to file charges is a violation of his due process rights, according to an early version of a press release from Cosby's team. The U.S. Constitution guarantees citizens a right to a trial "without unnecessary delay" and not be deprived of liberty "without due process of the law," and Cosby wants a judge to take up the issue of how the D.A. waited more than a decade to charge him with molesting Constand back in 2004.
This isn't the first time that Cosby has voiced such arguments.
After the entertainer was charged in December, his attorneys filed a habeas petition the following month that argued he suffered prejudice from the long delay in the filing of charges.
The primary focus in the early motion was on an alleged non-prosecution agreement made in 2005 with the former Montgomery County District Attorney, which came after a police investigation and Constand bringing a civil lawsuit. Cosby said he got assurances of no prosecution to allow him to testify in Constand's lawsuit. Without such a promise, Cosby's lawyers say he would have asserted his Fifth Amendment right against self-incrimination.
In early February, a judge heard two days of testimony and concluded the terms of the non-prosecution agreement were "ambiguous," allowing the case to move forward.
Now, according to Cosby's press release (stamped "not final"), a new dismissal motion will assert that the long delay has made a fair trial impossible.
"‘[T]he question before this Court is why the field of investigation was allowed to lie fallow for over a decade while witnesses died and evidence disappeared,’” begins the 25-page motion, according to the release. "During that lengthy delay, numerous actors — the Commonwealth of Pennsylvania; a federal judge with a baseless theory; a lawyer who parades her clients’ untimely, unverifiable claims before the media; and a district attorney who publicly branded a celebrity for his own political gain — created a perfect storm of prejudice, bias, and delay that requires dismissal of the stale charges against Bill Cosby.”
Cosby's lawyers are again making bones about the alleged agreement not to prosecute him, saying that the resulting testimony in the civil lawsuit improperly became public and caused a taint when it supposedly was not reported upon accurately by the media. They say that the current criminal case relies heavily on that deposition.
There's also the possibility of many of Cosby's other accusers offering their own testimony at trial in support of Constand, but Cosby's team says this contradicts the conclusions of non-admissibility made by the D.A. in 2005.
"Politics has also played an outsized role in tilting the criminal case against Mr. Cosby," states the press release. "The defense motion notes that current Montgomery County District Attorney Kevin Steele rode into office in the fall of 2015 with the promise of a Cosby prosecution a centerpiece of his campaign — including television ads branding Mr. Cosby a 'sexual predator' who needed to be locked away, as if the nearly 80-year-old, nearly blind defendant posed a threat to citizens of the County."
Indeed, there is a new occupant in the D.A.'s office, Kevin Steele, and the judge earlier had to decide whether Steele is beholden to what was represented by his predecessor. Steele has elected to take advantage of Pennsylvania's 12-year statute of limitations on aggravated sexual assault, and the judge will have to now decide whether a charge within the lengthy statutory period to file claims can still be deemed to be untimely under the right context.
Steele issued a lengthy statement on Thursday in response to the filing: "The motion filed today is primarily a rebranding of the same failed arguments the Cosby defense team has previously put forth. While we will be filing a response with the court, I did want to point out that Mr. Cosby's team is raising once again the fictional assertion that the Commonwealth is failing to follow a 'promise' that Cosby would not be prosecuted. Following two days of testimony on the matter in February, the court ruled that the Commonwealth could proceed. That decision was based on evidence that no immunity order existed and no promise was made. The former DA issued a press release on February 17, 2005, that: 'caution[ed] all parties to this matter that he will reconsider this decision should a need arise.' The need arose last July when evidence came to light, and consequently the District Attorney's Office reopened the investigation. We remain ready to present our evidence in court, and let a jury decide."
The entertainer is represented by attorneys at McMonagle, Perri and Liner LLP.
UPDATE 10/6 11 AM EST: The motion has been filed and can be read in full here.