NORRISTOWN, Pa. _ Bill Cosby's lawyers turned to an old argument, hoping for a new result, Tuesday in urging a judge to keep the 79-year-old entertainer's decade-old testimony away from jurors at his sexual assault trial.
At a hearing in Norristown, defense lawyer Brian J. McMonagle said his client would never have agreed to be deposed for accuser Andrea Constand's 2005 lawsuit were it not for a promise Cosby says he received from a prosecutor back then, vowing he would never be charged.
It would be unfair now, McMonagle told Montgomery County Judge Steven T. O'Neill, to allow prosecutors to use that deposition _ in which Cosby discusses using drugs and alcohol in past sexual encounters with women _ in an effort to put him in prison.
"You give your word, you've got to keep it," McMonagle said. "This case involves a situation where somebody else gave their word ... and now (Montgomery County District Attorney Kevin R.) Steele doesn't like this promise."
That argument opened the first of four days of hearings O'Neill has scheduled over the next six weeks to determine what evidence prosecutors will be allowed to use at Cosby's June trial on charges that he drugged and sexually assaulted Constand in 2004.
Cosby wore a dark suit and sat quietly with his lawyers at Tuesday's daylong hearing. The judge did not rule on the deposition but appeared skeptical of the defense claim, one he has rejected before.
In February, O'Neill rebuffed Cosby's request to throw out the case based in part on that same purported pledge _ a 2005 oral agreement from then-District Attorney Bruce L. Castor Jr. that he would never prosecute Cosby over Constand's allegations if the comedian would sit for a deposition in her civil lawsuit.
Prosecutors maintain that no such agreement existed and that Castor has changed his story in the last decade to justify his decision not to charge Cosby when Constand came forward in 2005.
Castor "spent a great deal of time attempting to assassinate this case," Assistant District Attorney M. Stewart Ryan said.
O'Neill, who said Tuesday he had not seen a transcript of the deposition, noted that Cosby may have agreed to testify with or without Castor's alleged promise. Jurors in civil cases are allowed to weigh a defendant's choice to plead his Fifth Amendment rights against self-incrimination.
A federal judge in Philadelphia unsealed excerpts of the deposition for the first time last year. Steele cited them among the new evidence that prompted his office to reopen its Constand investigation.
In the deposition, Cosby testified that he had consensual sexual encounters with Constand and other women, including some whom prosecutors now hope to call as trial witnesses. He also said he had used Quaaludes in other consensual encounters with women but denied sexually assaulting anyone.
When the hearing resumes Wednesday, O'Neill is expected to take up defense claims that the Constand case is too old and Cosby too blind and infirm to prosecute.
Prosecutors are also seeking permission to introduce testimony from 13 other women who say Cosby attacked them in a manner similar to that alleged in the Constand case.
Cosby remains free on $1 million bail. He is charged with three counts of aggravated indecent assault.
