NORRISTOWN >> Lawyers for Bill Cosby contend the entertainer was in California, not Pennsylvania as they previously believed, at the time of a January 2005 telephone conversation he allegedly had with the mother of Andrea Constand, the woman who accused him of sexual assault.
But the newly discovered information about Cosby’s whereabouts at the time of the call did not stop the entertainer’s lawyer from arguing that a jury should never hear that call because Constand’s mother, who was in Canada at the time, “recorded the telephone call without (Cosby’s) consent” in violation of both Pennsylvania and California wiretap laws.
“Mr. Cosby notes that based on discovery he just received from the commonwealth, it is apparent that he was in California at the time of his January 17, 2005 call to Mrs. Constand,” lead defense lawyer Brian J. McMonagle wrote in a supplemental motion filed in Montgomery County Court on Monday. “Certainly, this fact does not alter the determination of whether this court should apply Canadian law or the law of Pennsylvania, the forum state, to determine the admissibility of the contents of the recorded call.”
The filing corrects court papers filed two weeks ago in which McMonagle claimed Cosby was at his Cheltenham home in Pennsylvania at the time of the call.
“Mrs. Constand did not inform Mr. Cosby that she was secretly recording their telephone conversation, making it clear that he did not authorize the interception of the communication,” McMonagle claimed in court papers. “While Mr. Cosby recognizes that Mrs. Constand’s actions did not violate Canada’s criminal code with respect to the interception of his oral communication…Pennsylvania law clearly governs the admissibility of the recording at issue in the instant case.”
McMonagle argued Cosby is a Pennsylvania resident, that the acts that form the basis for the criminal charges allegedly took place in Pennsylvania and that Pennsylvania has jurisdiction over the case. Therefore, questions involving the admissibility of evidence must be analyzed under Pennsylvania law, McMonagle argued.
McMonagle has asked Judge Steven T. O’Neill to prevent prosecutors from using the recording as evidence against Cosby when his trial eventually begins. O’Neill has not set a hearing date on the request.
William Henry Cosby Jr., 79, as his name appears on charging documents, faces charges of aggravated indecent assault in connection with allegedly drugging and sexually assaulting Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home between mid-January and mid-February 2004.
The legal battle likely will hinge on a judge’s interpretation of laws in both Canada and the U.S. regarding telephone interceptions without consent.
While wiretap laws in Pennsylvania and California require the consent of all parties to the interception of an oral communication, Canadian law permits the interception of a private communication where only one party to the communication consents to the recording.
In charging documents prosecutors alleged Constand returned to her native Canada in March 2004 and later in January 2005 confided in her mother that “Cosby had sexually assaulted her.”
“Shocked and devastated upon hearing details of the sexual assault of her daughter, Mrs. Constand called Cosby on the telephone to confront him…and instead left a voicemail message,” prosecutors alleged in the criminal complaint.
Prosecutors contend Cosby returned the call on Jan. 16, 2005, and that during a 2 ½ hour conversation Mrs. Constand questioned Cosby about what he had allegedly done to her daughter and what he had given to her. Cosby allegedly responded he would “have to look at the prescription bottle” and that he’d write the medication on a piece of paper and mail it to her, according to the arrest affidavit.
During the same conversation, Cosby allegedly admitted fondling Constand and “apologized and offered to cover any expenses associated with therapy,” according to the criminal complaint.
But prosecutors contend Cosby called Mrs. Constand again on Jan. 17 and that she recorded that call. During that call, “Cosby not only offered to pay for the victim’s therapy, but also her graduate school tuition and expenses for travel to Florida,” detectives alleged in court documents.
“Investigators recognize that individuals who are falsely accused of sexual assault generally do not unilaterally offer generous financial assistance, and apologies, to their accuser and their accuser’s family,” detectives alleged. “To the contrary, such conduct is consistent with offenders who are seeking to make amends for wrongful behavior and prevent involvement by law enforcement.”
Prosecutors contend the recorded conversation is important evidence “indicative of Cosby’s consciousness of guilt.”
But McMonagle alleged the Jan. 17 conversation was recorded illegally and is not admissible as trial evidence.
A trial date for Cosby has not yet been set but lawyers are expected to meet with the judge in September to discuss scheduling matters.
The latest legal wrangling comes at the same time McMonagle and co-defense lawyer Monique Pressley await a decision from the state Superior Court on their request that the state court review Judge O’Neill’s July 7 determination that prosecutors, under current state law, were not required to present Constand’s live testimony during Cosby’s May preliminary hearing before a district court judge.
The criminal charges were lodged against Cosby on Dec. 30, before the 12-year statute of limitations to file charges expired.
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.
If convicted of the charges at trial, Cosby, an entertainment icon who remains free on 10 percent of $1 million bail, faces a possible maximum sentence of 15 to 30 years in prison.