Those, anyway, are among the arguments being deployed in the disgraced pop-culture icon’s new motion for dismissal that was filed Thursday in a Montgomery County, Pennsylvania, criminal court.
Cosby, 79, is facing three counts of felony aggravated indecent assault that he allegedly committed a dozen years ago on Andrea Constand, then a 31-year-old women’s basketball director at Cosby’s alma mater, Temple University.
And because of Cosby’s race—never mind his status as a mega-rich celebrity whose net worth was once estimated at $400 million—his lawyers are apparently claiming he can’t get a fair trial.
“The Commonwealth chose thirteen women to testify against Mr. Cosby. Only one of those women self-identifies as African-American,” Cosby’s legal team asserts in the motion, referring to the prosecution’s list of supporting witnesses in the Constand case, out of more than 50 women who have alleged that over a period of four decades Cosby plied them with powerful sedatives and/or alcohol before sexually forcing himself on them.
“The Commonwealth’s choice preys upon subconscious (or perhaps conscious) beliefs that a white woman is less likely to consent to sex with a black man, particularly in the 1960s and 1970s—the time period the Commonwealth chose to focus on.
“This turns the presumption of innocence that Mr. Cosby is entitled to,” Cosby’s lawyers continue, “into a presumption of guilt, and runs counter to the basic principles upon which the United States was founded.”
Team Cosby adds that “we cannot ignore the unfortunate role that racial bias still plays in our criminal justice system,” and quote from a criminology journal article stating that “‘racial and ethnic disparities [still] exist in both the American juvenile and adult criminal justice systems’ in general, and in Pennsylvania in particular.”
Cosby’s Los Angeles-based attorney Angela C. Agrusa, who joined his defense team in August to work with prominent criminal defense lawyer Brian J. McMonagle, Cosby’s lead attorney for the past year, told The Daily Beast that the racial aspect can’t be ignored.
“I don’t think you can escape it, any time you’re looking at allegations against an African American in the criminal justice system,” she said in an interview. “We have identified it in the way we believe these women [the 13 supporting prosecution witnesses in the Constand case] have been selected, and part of it is the way [recently elected Montgomery County District Attorney] Kevin Steele ran his campaign. Bill Cosby was the focal point of his campaign.”
In 2005, after then-Montgomery District Attorney Bruce L. Castor Jr. declined to press criminal charges, citing insufficient evidence, Constand sued Cosby and received a reported multimillion-dollar settlement from the comedian. Kevin R. Steele, who made Castor’s failure to prosecute Cosby a centerpiece of his campaign last fall, filed charges last December after dozens more women had accused Cosby of sexual misconduct, and a federal judge ordered the public release of Cosby’s long-ago depositions in Constand’s civil suit.
In his sworn deposition testimony, which he believed would never see the light of day, a swaggering Cosby admitted that he gave Constand Benadryl pills before one of their sexual encounters:
“I go inside of her pants. She touches me. It’s awkward. It’s uncomfortable for her. She pulls her hand—I don’t know if she got tired or what. She then took her hand and put it on top of my hand to push it in further. I move my fingers. I do not talk. She doesn’t talk. But she makes a sound which I feel was an orgasm and she was wet. She was wet when I went in….
“She relaxed her hand after pressing it during her sound. I relax. I pull my hand out after a wait of a while. I don’t say anything. I then make a move to get out. She moves back. She now has her arm like so. Her left arm out. I sit between her torso and her thighs. I sit there and I ask her to please take a nap. Please take a nap…
“I don’t hear her say anything. And I don’t feel her say anything. And so I continue and I go into the area that is somewhere between permission and rejection. I am not stopped.”
He also described how he plied young women with Quaaludes in the 1970s, including some still in their teens, in order to have sex with them:
“What was happening at that time was that, that was, quaaludes happen to be the drug that kids, young people were using to party with and there were times when I wanted to have them just in case.”
And he described how a modeling agency would regularly send him young women for company, and admitted to an encounter with an 18-year-old under interrogation by Constand’s lawyer:
Q: On a later occasion you had her masturbate you with lotion. Did that ever happen?
Q: [She] used the lotion to rub your penis and make you ejaculate?
Cosby’s latest motion asserts that in October 2015, as portions of his depositions were prompting lurid headlines, Steele attacked him as a “sexual predator in a ‘Willie Horton-style’ television advertisement”—a reference to the racially charged TV spot that helped the first George Bush win the 1988 election—“that ran repeatedly in the media…generat[ing] another avalanche of negative publicity about Mr. Cosby that he was powerless to address, let alone counter.
“Mr. Steele’s campaign portrayed the nearly blind, 78-year-old Mr. Cosby as a dangerous monster whose incarceration was not only appropriate, but required. Mr. Steele’s campaign was successful, and he won office by trampling Mr. Cosby’s constitutional and civil rights, convicting him in the court of public opinion.”
Cosby’s 27-page legal brief—which was blasted out in a press release and is surely aimed as much at that court of public opinion as at the trial court—echoes some of the same claims that didn’t survive a preliminary hearing in February.
At the time, Montgomery County Judge Steven T. O’Neill dismissed Cosby’s argument that the current district attorney, Steele, had violated a decade-old promise of his predecessor Castor that in return for waiving his Fifth Amendment rights and testifying about his sexual activities in a civil deposition, Cosby would not be prosecuted.
“Mr. Cosby’s team is raising once again the fictional assertion that the Commonwealth is failing to follow a ‘promise’ that Cosby would not be prosecuted,” Steele said in his own press release responding to Thursday’s motion. “Following two days of testimony on the matter in February, the court ruled that the Commonwealth could proceed. That decision was based on evidence that no immunity order existed and no promise was made.”
Steele plans to file a response to the motion, and then a hearing is expected.
Meanwhile, Cosby’s new motion—which argues that the “lengthy and unjustifiable” delay in filing the assault charges “deprived Mr. Cosby of his fundamental due process rights”—repeatedly begs the court’s compassion, complaining that “while the Commonwealth was doing nothing [in the case] for a decade, Mr. Cosby became blind due to a degenerative eye condition and his memory has substantially declined. He will be 80 years old next summer.
“Yet,” the filing continues, “he is now being asked to remember events and people from up to half a century ago. Without his eyesight, Mr. Cosby cannot even determine whether he has ever even met some of his accusers, let alone meaningfully assist in his own defense.”
Cosby’s motion is particularly tough on feminist lawyer Gloria Allred, who represents around 10 of the supporting witnesses in the prosecution’s case.
“Ms. Allred parades her clients in front of the media—entertainment masked as legal prowess and journalism,” Team Cosby argues. “And the public jumps into a mob, willing to believe unsubstantiated, decades-old allegations against an African-American citizen who has spent the last half a century trying to foster an appreciation for the commonalities of every American, regardless of race, gender, or religion.”
Allred didn’t respond to a request for comment by deadline.
As for Cosby attorney Angela Agrusa, here’s how she responded when asked if her client is innocent of the charges:
“That’s so funny, how people ask me that. Let me tell you that Number One, he has denied the charges against him. That’s clear. Number Two, did you know that in the past when lawyers have tried to speak out in his defense, to say he is innocent or talk about that, they have been sued for defamation?…
“So you can imagine how difficult it is to speak with people in the press. We have to be very careful in the words that we use and very circumspect in how we do it—because there are people that are watching very closely.”