NORRISTOWN >> Just months before his retrial is to begin, Bill Cosby, through his lawyers, argued sexual assault charges must be dismissed against him because prosecutors cannot prove that the alleged incident occurred within the statute of limitations.
Defense lawyers Thomas Mesereau Jr., Samuel W. Silver and Kathleen Bliss filed court documents Thursday contended alleged victim Andrea Constand previously testified the sexual assault occurred at Cosby’s Cheltenham home before Jan. 20, 2004, forcing prosecutors to prove that the incident occurred on an evening somewhere within a 22-day window between Dec. 30, 2003, and Jan. 20, 2004.
The statute of limitations for the crime is 12 years. Montgomery County prosecutors charged Cosby with aggravated indecent assault on Dec. 30, 2015.
Defense lawyers argued prosecutors must prove, with “reasonable certainty,” that the alleged encounter occurred more recently than 12 years before the date of the criminal complaint – that is, on or after Dec. 30, 2003, or the case must be dismissed.
“In 2003 and 2004, Mr. Cosby had an incredibly active career and was in high demand for performances and appearances. Mr. Cosby’s itineraries, travel records and other contemporaneous documents establish that he was not in Pennsylvania on any day between December 30, 2003, and January 20, 2004,” the defense team wrote in court documents.
Court documents filed by the defense, dissected the travel records, telephone records and work schedules of both Cosby and Constand during the three-week period of January 2004.
Defense lawyers argued Constand previously testified that she and Cosby spoke the day of the alleged incident to arrange their meeting for that evening and that she called Cosby when she was nearby and asked to be let into the driveway to his mansion.
“Most significantly, Ms. Constand’s own telephone records demonstrate she did not make the calls she claims to have made to Mr. Cosby to coordinate plans for the evening or secure access to his home on any of the nights in the date range,” Mesereau, Bliss and Silver wrote in court papers.
“Further, on numerous dates within the date range, she made calls during the time of evening she claims to have been unconscious,” the defense lawyers argued.
When presented with “this incontrovertible evidence,” prosecutors cannot prove the charges against Cosby and as a result, “the case must be dismissed,” the defense team wrote.
“The commonwealth does not have sufficient evidence to meet its burden and, in fact, Mr. Cosby can affirmatively disprove Ms. Constand’s and the commonwealth’s claims to the contrary,” the defense team wrote.
District Attorney Kevin R. Steele has 10 days to respond to the defense claims. Judge Steven T. O’Neill has not yet scheduled a hearing on the matter.
The judge has set March 29 as the day for jury selection to begin for Cosby’s retrial. Testimony at the retrial is expected to begin April 2.
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 Constand, a former Temple University athletic department employee, at his Cheltenham home after plying her with blue pills and wine sometime in January 2004.
Cosby, 80, remains free on 10 percent of $1 million bail, pending the retrial and faces a possible maximum sentence of 15 to 30 years in prison if convicted of the charges.
Cosby’s first trial ended in a mistrial last June 17 after a jury of seven men and five women selected from Allegheny County individually told the judge they were hopelessly deadlocked “on all counts” after deliberating more than 52 hours over six days. The deliberations took longer than the evidentiary portion of the trial.
Steele immediately vowed to seek a retrial.
Mesereau, Bliss and Silver replace lawyers Brian J. McMonagle and Angela Agrusa, who represented Cosby at the first trial.
Thursday’s court filing was the first hint of the new defense team’s trial strategy.
During Cosby’s June trial, McMonagle and Agrusa argued Cosby was the victim of false accusations and that the entertainer and Constand had a “romantic relationship” and consensual sexual contact during the 2004 incident. At one point during the trial, McMonagle stood beside Cosby and suggested to jurors that while Cosby may have been an unfaithful husband, that didn’t make him a criminal.
Prosecutors argued Cosby was a trusted friend and mentor who took advantage of a woman in a “vulnerable state,” and sexually assaulted Constand.
Constand, 44, of Ontario, Canada, testified over two days that after taking the blue pills she began slurring her words and became “frozen” or paralyzed and was unable to fight off Cosby’s sexual advances. Constand claimed Cosby placed her on a couch, touched her breasts, forced her to touch his penis and performed digital penetration all without her consent.
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.