Comedian and actor Bill Cosby arrives at the Montgomery County courthouse this morning. Judge Steven T. O'Neill  will resume hearing arguments from lawyers for Bill Cosby and Montgomery County, Pennsylvania, prosecutors today in a key pretrial hearing involving Cosby's criminal sexual assault case.

Comedian and actor Bill Cosby arrives at the Montgomery County courthouse this morning. Judge Steven T. O'Neill will resume hearing arguments from lawyers for Bill Cosby and Montgomery County, Pennsylvania, prosecutors today in a key pretrial hearing involving Cosby's criminal sexual assault case.

ED HILLE / The Philadelphia Inquirer / POOL

Lawyers: Bill Cosby can’t recall alleged sexual assault because he’s blind now

NORRISTOWN, Pa. — Bill Cosby’s attorneys want a judge to throw out a 2004 sexual assault case against him because prosecutors took more than a decade to bring charges and now Cosby is unable to defend himself because he’s legally blind.

His attorneys say small-town politics are the reason Cosby is facing criminal charges at all and that because of their delay, he can’t remember incidents of alleged sexual assault because he now can’t see the women accusing him.

Cosby, 79, entered the courtroom today with the assistance of a handler and carried a cane. After proceedings had gone on for more than two hours without a break this morning, Cosby stood up in the middle of the hearing and began to wobble.

“Is he OK?” Montgomery County Judge Steven T. O’Neill asked. Cosby sat back down, and O’Neill abruptly dismissed court into a break.

At another point during the hearing, Cosby turned his chair around with his back to the judge and stared at the floor for several minutes. For the rest of the proceedings, Cosby appeared calm, occasionally leaning back in his chair and whispering with lead attorney Brian McMonagle.

O’Neill has not yet made a ruling on any of the remaining pre-trial issues, and arguments are expected to continue this afternoon. However, the judge seemed skeptical of the argument that Cosby can’t recall an alleged incident of sexual assault simply because he’s blind now.

Prosecutors say they waited until 2015 to file charges against Cosby because new evidence, in the form of a 2005 deposition, became public in July 2015. In that deposition that was part of a civil suit filed by accuser Andrea Constand, Cosby admitted to giving women drugs and then having sex with them. Whether or not prosecutors will be allowed to use that deposition at trial is still up in the air.

But Cosby’s attorneys say the idea that there was new evidence in the case in 2015 is a farce, and that prosecutors were well aware Cosby had been deposed in 2005 but never sought a transcript of that deposition.

What did change, they argue, is leadership.

“We believe that this case is not about depositions,” Cosby’s L.A.-based attorney Angela C. Agrusa said. “We believe it’s about a prosecutorial change of policy.”

Current District Attorney Kevin Steele was last year locked in a bitter race to be Montgomery County District Attorney against Bruce Castor, the former DA who declined to prosecute Cosby in 2005. During the campaign, Steele promised to re-examine the investigation into Cosby after women came forward last year saying the comedian sexually assaulted them.

“[Steele] decides that he’s going to use Mr. Cosby as a pawn in that election,” Agrusa said, “a trump card if you will.”

So Cosby’s defense team, attempting to prove charges were only filed due to a campaign promise, played a Steele-sponsored attack ad that ran during the small-town election:

After Steele won the election, charges were filed against Cosby at the eleventh hour, just days before the statute of limitations expired.

The comedian faces charges of aggravated indecent assault in connection with a 2004 incident in which former Temple University employee Constand said Cosby drugged and sexually assaulted in her in his home in Cheltenham, Pa.

Though 60 women have come forward saying Cosby sexually assaulted them, the charges filed as a result of the Constand case are the only criminal charges Cosby faces.

Cosby’s defense team has also argued that he is the victim of racial bias, and that prosecutors purposefully enlisted mostly white women to testify against him. The defense claimed in court filings that only one of the 13 women the state may have testify against Cosby identifies as black.

“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,” his attorneys wrote in a motion to dismiss the case.

Women’s rights attorney Gloria Allred, who has been present in the courtroom over the last two days and represents some of the women who have accused Cosby of sexual assault, said Tuesday that “race is a bogus issue.”

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