Tuesday, January 12, 2016

Cosby seeks to have Montgomery Co. DA's office disqualified

Bill Cosby is seeking to have the felony charge against him dismissed, or at least to have the Montgomery County District Attorney’s Office disqualified from the prosecution, reported Lizzy McLelland of The Legal Inteligencer.
Attorneys for Cosby filed a petition for writ of habeas corpus and motion to disqualify in the Montgomery County Court of Common Pleas Monday. He argued that he had an express agreement with the DA’s office in 2005, through then-District Attorney Bruce Castor, in which the commonwealth said Cosby would never be prosecuted with respect to allegations of sexual assault by Andrea Constand, who later sued Cosby and agreed to a confidential settlement in 2006.
“The express intent of the agreement was to induce Mr. Cosby not to assert his constitutional rights under the Fifth Amendment, and Mr. Castor reminded the District Attorney’s office about that agreement in 2015, before these charges were brought,” a memo supporting the motion said. “Even if the commonwealth had not agreed these charges would not be brought, its inexcusable and prejudicial delays in doing so separately warrant dismissal.”
Constand’s allegations are the basis for the aggravated indecent assault charge filed against Cosby Dec. 30. Montgomery County District Attorney Kevin Steele said the charges were filed as a result of new information coming to light in July when a number of court documents from Constand’s civil case were unsealed. Those documents included portions of the deposition Cosby gave, in which he admitted to obtaining prescription depressants in order to have sex with a woman.
Cosby’s lawyers said Steele brought the charges in order to fulfill a campaign promise.
They also argued that the charges should be dismissed on due process grounds because they came 10 years after the alleged assault. Due process prohibits unreasonable delays in making arrests, Cosby’s memo said, even if the charges are “made at the eleventh hour” before the expiration of the statute of limitations.
Since 2005, the memo said, the attorney who negotiated the non-prosecution agreement with the District Attorney’s Office has died and “his testimony is lost forever.” In addition, Cosby has lost his eyesight, and therefore his ability to identify witnesses, accusers and physical evidence. Other third-party witnesses may no longer be available, the memo said. Cosby is being represented by Philadelphia lawyer Brian J. McMonagle. Also signing the motion were Los Angeles lawyers Christopher Tayback and Joseph Sarles and Washington, D.C. lawyer Monique Pressley.
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