All the evidence Bill Cosby doesn’t want a jury to see

Jokes on drugging women, admissions about Quaaludes, and more.

Bill Cosby departs after a pretrial hearing in his sexual assault case at the Montgomery County Courthouse in Norristown, Pa., Monday, April 3, 2017. CREDIT: AP Photo/Matt Rourke
Bill Cosby departs after a pretrial hearing in his sexual assault case at the Montgomery County Courthouse in Norristown, Pa., Monday, April 3, 2017. CREDIT: AP Photo/Matt Rourke

In two months, the criminal trial of Bill Cosby will begin. He stands accused of drugging and sexually assaulting Andrea Constand at his home in 2004. Though about 60 women have accused Cosby of sexual misconduct, Constand’s is the only criminal case against him. If he is convicted, Csoby faces up to 10 years in prison.

Since he was ordered to stand trial last May, Cosby and his legal team have tried to delay and derail the proceedings, with mixed results. They asked that Cosby be allowed to confront and cross-examine Constand in a pre-trial hearing (denied). They requested that court documents from 2005 — the deposition in which Cosby admitted to getting drugs for women he wanted to have sex with —be resealed (rejected). They pushed the date of the trial to June 2017, months later than prosecutors hoped for, because Cosby’s attorney was “extraordinarily over-scheduled” (success). They told the court Cosby was “legally blind” and that “no 79-year-old blind man could possibly defend himself against a claim that he sexually assaulted someone he supposedly met once, half a century ago” (the trial is still happening).

The latest efforts by team Cosby focus less on avoiding the trial altogether — perhaps because it is clear the trial will be going forward, whether Cosby’s got 20/20 vision or not — and more on controlling how the trial will proceed. They’re raising questions over who will get to be on the jury and what evidence and testimony that jury will actually get to see and hear. So far, the odds are mostly (n)ever in his favor, with Judge Steven T. O’Neill ruling for the prosecution more often than not.

Can Cosby’s old jokes about drugging women be submitted as evidence at trial?

In Cosby’s 1991 book Childhood and during an interview with Larry King that same year, Cosby joked about slipping the “aphrodisiac” known as “Spanish fly” into girls’ drinks. In the book, he writes about secretly sprinkling the drug on cookies to give to 13-year-old girls at a party. On Larry King, he described dropping it into a young woman’s drink: “The girl would drink it and, hello America!” (You can also hear Cosby riff on Spanish fly on the album It’s True! It’s True! “Go to a party, see five girls standing alone. Boy, if I had a whole jug of Spanish fly, I’d light that corner up over there.”)

In a filing last Thursday, prosecutors pushed to have both the book and the interview introduced as evidence. Montgomery County district attorney, Kevin R. Steele, said in court papers that the interview and chapter are “powerful and damaging admissions.”

When the matter came up during Monday’s hearing, one of Cosby’s lawyers, Brian J. McMonagle, said, “I hesitate to dignify that with any argument.”

Judge O’Neill has not yet ruled on whether the interview or book can be included at trial.

What about Cosby’s admission about getting drugs for “young women that [he] wanted to have sex with”?

In a deposition from his 2005 civil case, Cosby admitted on the record to obtaining drugs with the intent of giving them to women he wanted to have sex with. When the deposition was made public in July 2015, the public response was explosive: The New York Times got the full transcript and detailed Cosby’s “calculated pursuit of young women,”; Cosby was dropped by his agency; and, most crucially, then-Montgomery County district attorney Risa Vetri Ferman reopened the Constand case, with only six months left in Pennsylvania’s 12-year statute of limitations for aggravated indecent assault.

Excerpt from 2005 deposition of Bill Cosby. CREDIT: Associated Press
Excerpt from 2005 deposition of Bill Cosby. CREDIT: Associated Press

Steele wants the deposition included; Cosby’s team, unsurprisingly, does not. (He has previously tried, and failed, to have this piece of evidence thrown out.) In December, Judge O’Neill ruled that the deposition could be admitted as evidence.

But earlier last week, Cosby’s team filed a motion to bar any mention of Quaaludes or the monetary gifts he’d given women from trial, arguing that “the testimony about Quaaludes and the alleged provision of money or educational funds is quintessentially the kind of evidence that causes ‘unfair prejudice.’” Bringing up Quaaludes — which, Cosby’s lawyers said, “have not been available in this country for two decades” — would only “divert the jury’s attention.”

Bill Cosby arrives at Montgomery County Courthouse for his change of venue hearing in Norristown, Pennsylvania on February 27, 2017. CREDIT: Star Shooter/MediaPunch/IPX
Bill Cosby arrives at Montgomery County Courthouse for his change of venue hearing in Norristown, Pennsylvania on February 27, 2017. CREDIT: Star Shooter/MediaPunch/IPX

While Cosby’s lawyers can’t get the deposition eliminated entirely, they asked Judge O’Neill to exclude any part of the deposition that refers to any woman besides Constand and the one other accuser who can testify at trial. That means arguably the most damning section of the deposition — the part about getting Quaaludes for other women — is out.

In response, Steele argued that Cosby’s “prior bad acts are relevant…they tend to establish that he 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.” The deposition proves that Cosby “had knowledge of date-rape drugs” and “was willing to slip them to the victim in this case.”

Judge O’Neill has yet to rule on this, but at Monday’s hearing, he noted the difference between the 1991 book and interview and the 2005 deposition, suggesting the former is less likely to make the cut than the latter: “Clearly one is in the context of comedy.”

Can any of Cosby’s other accusers testify?

Prosecutors hoped that 13 of the women who have accused Cosby of sexually assaulting them would be able to testify at the trial, claiming that their numbers demonstrated a pattern of misconduct that supported Constand’s allegations.

In February, Judge O’Neill ruled that only one of those 13 women would be allowed to testify. As ThinkProgress reported earlier this year, based on court documents and other publicly available information, it is probable that the woman in question is one who says Cosby assaulted her in 1996. She goes by the pseudonym “Kacey”:

Kacey came forward at a press conference led by Gloria Allred on January 7, 2015. She says that, while she was working as an assistant for Cosby’s William Morris agent, Cosby drugged and assaulted her. She thought of Cosby as a “father figure or favorite uncle.” During a one-on-one meeting at the Bel Air Hotel — Cosby, she says, told her they would be talking about her professional future — Cosby made her take a “large white pill” to “relax.” She woke up in bed next to him. He was only wearing a bathrobe.

Kacey never pressed charges for fear of retaliation.

Should jurors be subjected to an unusually rigorous screening process?

Cosby’s team wanted an extremely involved vetting process for potential jurors, one that would take weeks and draw from a pool of almost 2,000 people. Those individuals would be mailed extensive questionnaires and asked, among other things, their thoughts on celebrity and sexual abuse. As the Philadelphia Inquirer reported, one of Cosby’s lawyers, Angela Agrusa, claimed that this was vital because Cosby’s case has received “more publicity than any piece of litigation … we have probably ever seen in our lifetimes.”

But Judge O’Neill had already made concessions to Cosby’s fame in regards to jury selection — in March, he agreed to allow jurors to be pulled from Allegheny County instead of Montgomery County; Cosby’s lawyers insisted a jury of locals wouldn’t give him a fair trial — and rejected this other request.

Potential jurors will be given a 16-question form and nothing else. “I don’t intend to send anything other than the Supreme Court document out,” Judge O’Neill said. Jury selection will likely begin at the end of May. Judge O’Neill plans to screen as many as 125 potential jurors a day. Once selected, they will be sequestered and bused to Norristown for the trial, which is slated to begin on June 5.