IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,

PENNSYLVANIA CRIMINAL DIVISION

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COMMONWEALTH OF PENNSYLVANIA

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WILLIAM H. COSBY, JR.

REPLY TO COMMONWEALTHS OPPOSITION TO MOTION TO DISMISS THE

CHARGES BASED ON DEPRIVATION OF DEFENDANTS DUE PROCESS RIGHTS
The lengths that the Commonwealth will go to in its attempts to legitimize its decision to
prosecute Bill Cosby after doing nothing for over a decade are astounding:
The Commonwealth:

The death of Mr. Cosbys lawyer, Walter M. Phillips Jr., is

insufficient to show actual prejudice because other people testified that the Commonwealth
promised not to prosecute Mr. Cosby based on Andrea Constands allegations. Commonwealths
Opposition (Opp.) at 14-15. The Reality: This Court still denied defendants non-prosecution
agreement claim based on credibility. Id. Only two people in the world could personally confirm
and testify to the Commonwealths promise: former District Attorney Bruce L. Castor, Jr. and Mr.
Phillips. By attacking District Attorney Castors credibility, the Commonwealth unwittingly made
Mr. Phillips an essential witness for the defense. As this Court observed: Theres no other witness
to the promise. District Attorney Steele was so fixated on calling his predecessor a liar, he did not
realize that, in doing so, he was winning the battle but losing the war.
The Commonwealth:

[N]one of the supposedly lost evidence directly involves the

allegations that he sexually assaulted the victim in this case. Opp. at 14. The Reality: The
Commonwealth has made it quite clear that this case is not really about whether Mr. Cosby sexually
assaulted Andrea Constand (he did not). Rather, the Commonwealth concedes that Mr. Cosby is
being prosecuted for supposedly us[ing] his fame and fortune for decades to conceal his crimes.

Opp. at 2 (emphasis added). In fact, the Commonwealth has chosen to turn this case into a platform
for Mr. Cosbys other accusers to air their even staler, long-ago time-barred claims that were never
reported to authorities. The Commonwealths choices about how to prosecute this case, combined
with its lengthy delay in bringing charges, impose an impossible burden on Mr. Cosby. No 79-yearold blind man could possibly defend himself against a claim that he sexually assaulted someone he
supposedly met once, half a century agoand the Commonwealth knows it.
The Commonwealth: The deposition transcripts that triggered the renewed investigation
were newly-available in 2015. Opp. at 3, 7. The Reality: While Mr. Cosbys deposition
transcripts were newly-available to the public in 2015, nothing could have stopped the
Commonwealth from obtaining those transcripts in 2005,2006,2007,2008,2009,2010,2011,2012,
2013, or 2014except, of course, the Commonwealths promise that Mr. Cosby would not be
prosecuted. In fact, all the Commonwealth had to do was ask, and voil! Ms. Constands lawyer
was more than happy to turn over the full transcripts. To protect herself from being embarrassed,
she even advised District Attorney Steele exactly what he needed to do so that she would not have to
notify Mr. Cosbys counsel.12
The Commonwealth: Mr. Cosbys deposition transcripts contained three pieces of new
information not known during its 2005 investigation.

Opp. at 19.

The Reality:

The

Commonwealth had that exact same information in 2005. (1) In the second version of the story that
Ms. Constand gave to authorities in 2005, she claimed to remember digital penetration; Ms.
Constands mother told authorities that Mr. Cosby admitted to digital penetration; and Mr. Cosby
admitted to a consensual sexual encounter. (2) In 2005, there were just as many accounts by
women that defendant had sexually assaulted them, Opp. at 2, as the Commonwealth is seeking to

1 N.T. 2/3/16 at 217:19-22, 218:22-23 (Troiani).

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introduce today: thirteen. (3) There has never been a dispute that Ms. Constand took medication
that Mr. Cosby offered her. While there is no question that it was not Quaaludes, the subject of
Quaaludes was investigated in 2005. Therese Serignese (Prior Accuser No. 4), told investigators that
she willingly took Quaaludes sometime in 1976. Notably, taking Quaaludes recreationally was
common in the 1970s. As Alexandra Dedick (Prior Accuser No. 1) explained to the Commonwealth:
At that time Quaaludes were really popular. People really liked those. Thus, these three pieces of
new information were plainly known to the Commonwealth in 2005.
The Commonwealth:

Mr. Steeles campaign ad never labeled defendant a sexual

predator. Opp. at 9. The Reality: In a Press Release entitled STEELE LAUNCHES NEW AD
ON CASTORS FAILURE TO PROSECUTE BILL COSBY, Mr. Steele announced that he
launched a crucial new phase of his campaign for Montgomery County District Attorney by
introducing a TV ad that touts his strong record of prosecuting sexual predators and draws
comparison to his opponents failure to prosecute Bill Cosby. (Emphasis added).
Our Supreme Court expressly disapproves of subjecting defendants to delayed prosecutions
in cases in which changing prosecutorial policies are the only reason to revive dormant
investigations after the passage of time causes actual prejudice to the defense. Commonwealth v.
Snyder, 713 A.2d 596, 605 (Pa. 1998). That is exactly what happened here. The fact that District
Attorney Steele is trying to shift the blame for charging Mr. Cosby is telling. See Opp. at 7-8
(making it a point to state that charges were filed under the administration of District Attorney
Fermanon her second-to-last day in office); 20 (stating that the Cheltenham Police and the
Montgomery County Detectives filed charges, but failing to mention that District Attorney Steele
personally approved and signed off on the complaint). The Commonwealths grumbling about
having to face a defendant with the resources to defend himself is also interesting. Opp. at 9, 11,23.

I.

THE ACTUAL PREJUDICE FROM THE COMMONWEALTHS LENGTHY

DELAY HAS ALREADY MANIFESTED.
Actual prejudice in pre-arrest delay cases is commonly demonstrated by the loss of

documentary evidence or the unavailability of a key witness. Commonwealth v. Louden, 803 A.2d
1181, 1184 (Pa. 2002). The Commonwealths assertion that Mr. Cosby has not shown actual
prejudice because none of the supposedly lost evidence directly involves the allegations that he
sexually assaulted the victim in this case, Opp. at 14, is absurd. The loss of essential evidence that
would have precluded the Commonwealth from filing its stale charges against Mr. Cosby in the first
place is concrete evidence of actual prejudiceeven more so than the loss of evidence destined for a
jurys consideration and, perhaps, rejection. Furthermore, the Commonwealth has effectively
admitted that its case against Mr. Cosby has little to do with whether he sexually assaulted the
victim in this case, and everything to do with the even staler claims of Mr. Cosbys other accusers.
A.

The Only Reason the Commonwealth Can Argue Today That the Promise It
Made to Mr. Phillips in 2005 Is Fiction Is Because Mr. Phillips Died in 2015.

It was the Commonwealths opportunistic reliance on the death of a former attorney, Opp.
at 15, that resulted in stale charges being filed against Mr. Cosby. The Commonwealth asserts that
the death of Mr. Cosbys attorney, Walter M. Phillips Jr., does not show actual prejudice because
testimony about the promise the Commonwealth made to Mr. Phillips remained available to
defendant through Castor and Schmitt and the Court still denied defendants non-prosecution
agreement claim based on credibility. Opp. at 15-16. That is the whole point.
The only reason the Commonwealth is in a position to argue that the promise that it made to
Mr. Phillips in 2005 is fiction, Opp. at 3, is because Mr. Phillips died ten years later, during the
Commonwealths lengthy delay. As this Court observed: Theres no other witness to the

promise.2 Mr. Phillips was the only person in the world who could directly confirm the promise
that District Attorney Bruce L. Castor, Jr. testified to making on behalf of the Commonwealth.
District Attorney Steele was so fixated on calling his predecessor a liar-arguing that Mr.
Castors credibility is out the window and characterizing his sworn testimony as revisionist
history3that he apparently did not realize he was conclusively demonstrating just how crucial Mr.
Phillips testimony was to Mr. Cosbys defense. When there are only two people in the room when a
promise is made, calling one of those people a liar makes the testimony of the other person essential.
The Commonwealths assertion that Mr. Phillips lost testimony relates to a pretrial claim
... that has nothing to do with [Mr. Cosbys] guilt or innocence, Opp. at 15, is preposterous. Mr.
Cosby would not now be in the position of having to defend his innocence if Mr. Phillips had not
died during the Commonwealths lengthy pre-arrest delay. Mr. Cosby has demonstrated sufficient
actual prejudice for this reason alone.
B.

The Stale Charges, and the Commonwealths Decision to Focus on the Even
Staler Claims of Other Accusers. Impose an Impossible Burden on Mr. Coshy.

Apparently realizing that Ms. Constand has damaged her own credibility beyond repair, the
Commonwealth has chosen to turn this case into a platform for Mr. Cosbys other accusers to air
their even staler, long-ago time-barred claims that were never reported to authorities. If the
Commonwealths plan succeeds, the trial will not be about whether Mr. Cosby sexually assaulted
the victim in this case; rather, it will be a lengthy series of mini-trials about Mr. Cosbys other
accusers. Opp. at 14, 20. The Commonwealths choices about how to prosecute this case
combined with its lengthy delay in bringing charges, and the accusers decades-long delays in

2 N.T. 2/3/16 at 269:19-270:2 (Colloquy) (emphasis added).

3 N.T. 2/3/16 at 289:10, 297:14-22 (Steele).
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coming forwardimpose an impossible burden on Mr. Cosby that easily rises to the level of actual
prejudice for purposes of due process.
As a practical matter, [Mr. Cosby] would be required to rebut the other accusers testimony
in order to establish his defense with the jury. Commonwealth v. Fortune, 346 A.2d 783,787 (Pa.
1975). How can a 79-year-old blind4*man defend himself against a claim that he sexually assaulted
someone he supposedly met once, half a century ago? The answer is simple: he cannot, and the
Commonwealth knows he cannot. Where, as here, the times and places of the other alleged incidents
are remote and vague, the defendant has no effective means of rebutting this evidence and is
stripped of the opportunity to presentan effective alibi defenseand any other defense. Fortune,
346 A.2d at 787 (emphasis added).
The Commonwealth asserts that [tjhese argumentsat bestgo to the admissibility of the
prior bad acts. Opp. at 16. To be sure, the testimony of the other accusers is not admissible for
numerous reasons that will be explained in future filings. But unless the Commonwealth withdraws
its motion to introduce the testimony of the other accusersand stipulates that it will not attempt to
admit the testimony of other accusers at trial Mr. Cosby has demonstrated another concrete
instance of actual prejudice.
As demonstrated in Mr. Cosbys opening brief, numerous witnesses died and evidence
disappeared during the Commonwealths lengthy delay. Commonwealth v. Wright, 865 A.2d 894,
907 (Pa. Super. 2004). And without his eyesight, Mr. Cosby cannot even determine whether he has
ever even seen some of his accusers, let alone develop defenses and gather exculpatory evidence.
Moreover, Mr. Cosbys memory has substantially declined in the last decade. At a recent deposition

4 Mr. Cosby is legally blind and has been registered with the Massachusetts Commission for
the Blind. Report of David G. Lofuto, M.D. (Oct. 24, 2016). A copy of this report will be
available for the Courts inspection at the November 1, 2016 hearing.
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on October 9, 2015, Mr. Cosby testified that he could not remember in response to over ninety
questions. See Snyder, 713 A.2d at 603 (instances where prosecution and defense witnesses ...
changed their testimony or could not remember specific details demonstrated actual prejudice).
II.

THE COMMONWEALTH HAS NO VALID REASON FOR ITS DELAYIT

SIMPLY DID NOTHING FOR OVER A DECADE.
[T]he absence of valid reasons to justify the late filing of charges will mandate the trial

court to dismiss the charges. Commonwealth v. Snyder, 713 A.2d 596, 605 (Pa. 1998) (emphasis
added). The Commonwealth admits that only the last six months of its eleven-plus-year delay was
spent actually investigating Ms. Constands claims, Opp. at 8, yet still maintains that [t]he delay in
this case is ... excusable as a derivation of a reasonable investigation. Opp. at 20. The delay in
this case was not derived fromi.e., the result ofa reasonable investigation; the Commonwealth
simply did nothing for over a decade (consistent with its promise not to prosecute Mr. Cosby).
A.

No New Evidence Became Available to the Commonwealth in 2015.

The Commonwealths attempt to excuse its eleven-plus-year delay in bringing charges rests
on the false premise that there was newly-available evidence in 2015 that had somehow remained
a closely-guarded secret for a decade. Opp. at 7, 11.
1.

The District Attorneys Office Was Fully Aware of Mr. Cosbys

Deposition, and Nothing Could Have Prevented the Commonwealth
From Obtaining ItExcept, of Course, the Promise Not to Prosecute.

The Commonwealth claims that the public release of Mr. Cosbys deposition testimonythe
testimony he gave based on the Commonwealths promise not to prosecutetriggered the renewed
investigation. Opp. at 3. The Commonwealths assertion that it had no reason to believe that the
depositions existed, much less that defendant had incriminated himself in them, Opp. at 22, is false.
The reason that District Attorney Castor promised not to prosecute Mr. Cosby was so that Mr.7

Cosby would not be allowed to take the Fifth Amendment in the subsequent civil suitwhen he
was subpoenaed, he would be required to testify.5
The Montgomery County District Attorneys Office was fully aware that Ms. Constand filed
a civil suit, put a subpoena on Mr. Cosby to testify, and he did so.6 And, as the Commonwealth
points out, [t]he Associated Press immediately moved to intervene, Opp. at 4, when motions
containing extensive portions of the parties depositions were filed under seal with the court.
Constand v. Cosby, 232 F.R.D. 486 (E.D. Pa. 2006). Ms. Constands lawsuit against Mr. Cosby in
generaland Mr. Cosbys deposition in particulargenerated intense media scrutiny in 2005 and
2006. Constand v. Cosby, 229 F.R.D. 472,478 (E.D. Pa. 2005); see Constand v. Cosby, 232 F.R.D.
494 (E.D. Pa. 2006) (compelling Mr. Cosby to answer additional deposition questions). The media
trolled the public docket, attended every public hearing, and reported on every development:

,7

Cosby and Consland will be deposed beginning today at unspecified locations.

One of Bill Cosbys 14 accusers has physical evidence to support her drugging
and/or sexual assault claims against the entertainer, an attorney involved in the civil
suit against Cosby revealed in court yesterday.8

Cosby must answer a question about the night of the alleged sexual assault and not
simply read from a statement he gave police.1

Cosby must answer questions about any alleged history of sex or drug use involving
himself and Constand; alleged sexual encounters with other women, so-called Jane
Doe witnesses, who have come forward with allegations similar to Constands; and
alleged sexual encounters and drug use with unrelated third parties.10

5 N.T. 2/2/16 at 65:2-13 (Castor).

6 N.T. 2/2/16 at 91:1-16 (Castor).
7 Egan, Nicole, Physical evidence against the Cos?, Philadelphia Daily News, September 27,
2005.
8 Id.
9 Hinkelman, Michael, Court: Cos must answer queries about article, Philadelphia Daily News,
February 2, 2006.

A woman who filed a civil lawsuit in federal district court here in March 2005
against entertainer Bill Cosby, alleging that he drugged and sexually assaulted her,
has settled the case.11

Nothing could have stopped the Commonwealth from obtaining Mr. Cosbys deposition
transcripts in 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, or 2014except, of course,
the Commonwealths promise that Mr. Cosby would not be prosecuted based on Ms. Constands
allegations. The Commonwealths excuse that it could not have obtained [Mr. Cosbys] depositions
before the judge ordered it [sic] released in 2015 because defendant would have fought, no doubt,
any attempt to obtain them, Opp. at 22, is speculative and untrue. In fact, the Commonwealth had
no trouble at all obtaining Mr. Cosbys full deposition transcripts directly from Ms. Constands
lawyerwithout Mr. Cosby even knowing. All the Commonwealth had to do was ask, and her
counsel was more than happy to turn over her full file. She even instructed District Attorney Steele
exactly what he needed to do so that she would not have to notify Mr. Cosbys counsel that a request
for her file had been made.
Not only were Mr. Cosbys deposition transcripts not newly-available to the
Commonwealth in 2015, Opp. at 7, neither was the information contained in those transcripts that
the Commonwealth is now claiming justified filing charges: (1) digital penetration; (2) accusations
by other women; and (3) Therese Serigncses voluntary consumption of Quaaludes in the 1970s.
First, in the second version of the story that Ms. Constand gave authorities in 2005, she
claimed to remember digital penetration; Ms. Constands mother told authorities that Mr. Cosby
admitted to ... digital penetration in a telephone call; and Mr. Cosby admitted to a consensual
sexual encounter with Ms. Constand that included genital touching. CP000217-18, 1379-80, 1187.*9

11 Hinkelman, Michael, Cosby Lawsuit Settled: Woman Claimed He Had Drugged and Sexually
Assaulted Her, Philadelphia Daily News, November 9, 2006.
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Second, there were just as many accounts by women that defendant had sexually assaulted
them in 2005, Opp. at 2, as the Commonwealth is seeking to introduce today: thirteen.
Third, there has never been a dispute that Ms. Constand took medication that Mr. Cosby
offered her. While there is no question that it was not Quaaludes, the subject of Quaaludes was
investigated in 2005. One of Mr. Cosbys accusers (Therese Serignese, Prior Accuser No. 4) told
authorities in 2005 that Mr. Cosby presented her with quaaludes and a glass of water sometime in
1976, and she took the drugs. CP000470. Taking Quaaludes recreationally was common in the
1970s. As Alexandra Dedick (Prior Accuser No. 1) explained to the Commonwealth: At that time
Quaaludes were really popular. People really liked those. CP003078-79 (emphasis added).
Ms. Serignese later spent a two week period with Cosby at Lake Tahoe. CP000470.
2.

Other Accusers Came Forward in 2005; Their Claims Were Too Remote
to Be Admissible in 2005, and They Are Even Staler Now.

To the extent that the Commonwealth is claiming that accusations against Mr. Cosby from
other women were newly-discovered in 2015, that argument must be rejected. In the same
campaign advertisement that branded Mr. Cosby a sexual predator, District Attorney Steele
attacked former District Attorney Castor for not filing charges against Mr. Cosby in 2005 when
many more victims came forward.12 District Attorney Castor testified:
The publicity then, as now, was worldwide, and anyone who had access to television
or newspapers or radio media would hear about it. And some people came forward
and said to contacted us and said that Mr. Cosby had done similar things to them
that he is alleged to have done to Ms. Constand.13
Thirteen accusers came forward in 2005 (the same number that the Commonwealth is
proposing to introduce now). However, the accusations were decades old and they were never

12 See http://www.steele4da.org/news-and-events-full and http://www.steele4da.org/videos.

13 N.T. 2/2/16 at 58:17-22 (Castor).
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reported to the police. 14 Accordingly, District Attorney Castor correctly determined that the
testimony would not be admissible by use of the probative value versus prejudicial test because
they were too remote in time to be reliable. 1516 As First Assistant District Attorney Ferman put it:
Generally, an accusation from over 30 years ago is not going to be considered
admissible in court or relevant to an investigation. 6
Thus, the accusations against Mr. Cosby are not new evidence. Indeed, the claims are even staler
and less reliable now than they were in 2005.
B.

The Commonwealths Unclean Hands Armnnent Is Frivolous.

The delay in this case was not caused by Mr. Cosby; rather, it was voluntary on the part of
law enforcement authorities. Commonwealth v. Sneed, 526 A.2d 749, 753 (Pa. 1987). The
Commonwealths argument that Mr. Cosby hid[] evidence for years, Opp. at 23, is false. Mr.
Cosby did not lie[] to the police like the defendant in Commonwealth v. McCormick, who falsely
informed the police during their initial murder investigation that he was not present during the
shooting of the victim. 772 A.2d 982, 983-84 (Pa. Super. 2001). Mr. Cosby never denied that he
had a consensual sexual encounter with Ms. Constand.
The Commonwealth cites no evidence to support its inflammatory and absurd claim that Mr.
Cosby used his fame and fortune to delay prosecution. Opp. at 2. The Commonwealth was fully
aware that Mr. Cosby had been deposed in Constand v. Cosby, and could have easily obtained the
transcriptsbut for the promise it had made not to prosecute Mr. Cosby based on Ms. Constands
allegations. Mr. Cosby was hiding in plain sight.

14 N.T. 2/2/16 at 59:6-9 (Castor).

15 N.T. 2/2/16 at 60:5-9 (Castor).
16 Morales, Tatiana, In the Name of Solidarity (Feb. 10, 2005), http://www.cbsnews.com.
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Moreover, there is nothing nefarious about restricting the publics access to civil discovery
materials, which is all that Mr. Cosby was attempting to do in Constand v. Cosby. [P]retrial
depositions and interrogatories are not public components of a civil trial, and they are conducted
in private as a matter of modern practice. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984)
(emphasis added). As shown above, unlike the public, the Commonwealth could have obtained Mr.
Cosbys not-at-all-secret deposition transcripts in 2005, 2006, 2007, 2008, 2009, 2010, 2011,
2012, 2013, or 2014but it did not, because Mr. Cosby gave that testimony based on the
Commonwealths promise not to prosecute him based on Ms. Constands allegations.
Finally, Mr. Cosbys opening brief did not take[] issue with the victims attorney, Dolores
Troiani, Esquire, cooperating with law enforcement. Opp. at 23. What Mr. Cosby took issue with
was Ms. Troianis gratuitous advice to District Attorney Steele on how to avoid a confidential notice
provision in the settlement agreement to protect herself from being embarrassed.

1n

CONCLUSION
The due process clauses of the United States and Pennsylvania Constitutions stand as a
safeguard against just the sort of fundamentally unfair prosecutorial conduct that the
Commonwealth has aimed at Mr. Cosby. Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016);
Snyder, 713 A.2d at 602. The time has come for the Commonwealth to end this charade. It is
plainly a violation of Mr. Cosbys due process rights for these chargeswhich were investigated,
vetted, rejected, and then dormant for over a decadeto be used as a pretense for the
Commonwealths desire to punish Mr. Cosby for having and us| ing] his fame and fortune, and for
alleged other crimes that cannot ever legally be pursued against him. The Commonwealths

N.T. 2/3/16 at 217:19-22, 218:22-23 (Troiani).

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blatant disdain suggests bias and prejudice and is an affront to justice. Accordingly, the stale
charges against Mr. Cosby must be dismissed.
Respectfully submitted,

Brian J. McMonagle, Esquire

MCMONAGLE, PERRI, MCHUGH,
& MISHAK, P.C.
1845 Walnut Street, 19lh Floor
Philadelphia, PA 19103
Tel: (215) 981-0999; Fax: (215) 981-0977

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