Cosby defense: Evidence is too old, flawed - and so am I

Bill Cosby's lawyers on Monday launched a new legal attack on the sex assault case against him, calling it illegal and unethical and asking a judge to dismiss the charges or disqualify the Montgomery County District Attorney's Office from prosecuting it.

In a motion, the lawyers claim the case brought by District Attorney Kevin Steele violates a 2005 non-prosecution agreement between Cosby and Bruce L. Castor Jr., who as the county's top prosecutor at the time investigated the same allegations but decided against charges.

The decadelong delay in bringing the case makes crucial evidence unavailable, they said. And they contend Cosby's "advancing age" and loss of eyesight could bar him from getting a fair trial because he cannot review evidence, identify witnesses or recall key events.

The motion was not accessible through the court docket system but Cosby's lawyers said they filed it Monday afternoon. It represented their first bid to legally attack the aggravated indecent assault charge lodged against the 78-year-old comedian for allegedly assaulting former Temple University employee Andrea Constand in his Cheltenham home in 2004. But it builds upon the argument they launched almost immediately after Cosby's arrest late last month: that Steele revived the charges to beat Castor in last fall's race for district attorney.

The case was "a political tool in his recent election campaign," said the filing from a defense team led by lawyers Brian McMonagle and Monique Pressley.

If a judge orders a hearing on the argument, the defense team said, it intends to call Castor to testify. Such a scenario could place Steele - or one of his subordinates - in a position of questioning Castor on a topic that defined their race.

Steele won after running TV ads attacking Castor for not arresting Cosby in 2005.

The criminal complaint filed against Cosby cites Castor's 2005 written announcement that he would not charge Cosby but that he would "reconsider this decision should the need arise."

Cosby's attorneys said Castor had negotiated a "non-prosecution agreement" with Walter M. Phillips Jr., an attorney for Cosby, who died last year. Their motion makes no reference to a written or signed document but describes it as a "meeting of the minds."

That agreement, they contend, compelled Cosby to give a deposition in a civil lawsuit brought a decade ago by Constand because he believed he could not be criminally prosecuted. The criminal case against him is now based in part on that deposition.

Steele's office reopened the investigation last summer after the deposition became public - and after more than 50 women nationwide made similar allegations against Cosby.

Steele has said only that he charged Cosby after new information became available and there was sufficient evidence to proceed.

Neither he nor Castor was available for comment Monday.

If the case is not dismissed, Steele and his office should be disqualified from prosecuting it, the defense lawyers argue.

Pressley said Steele's "deliberate injection of the allegations against Mr. Cosby into a political campaign" is unethical and should disqualify his office from involvement in the case.

Cosby is next scheduled to appear in court Feb. 2. His attorneys want the court to drop the charges before that preliminary hearing.

lmccrystal@phillynews.com

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