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Black Cosby Accuser Questions Defense Claim of Racial Bias

"Race has nothing to do with it,” said Lili Bernard, a black actress who alleges the comedian drugged and raped her in the '90s.
Image: Actor and comedian Bill Cosby arrives for a Habeas Corpus hearing on sexual assault charges at the Montgomery County Courthouse in Norristown, Pennsylvania
Actor and comedian Bill Cosby arrives for a habeas corpus hearing on sexual assault charges at the Montgomery County Courthouse in Norristown, Pennsylvania on July 7, 2016.MARK MAKELA / Reuters

One of Bill Cosby's accusers has a question about a controversial part of his defense strategy — his claim that he's a victim of racial bias.

"What about us black women whom he sexually violated?" artist Lili Bernard asked in an interview with NBC News at her home in Los Angeles.

“We’re talking about a man who serially raped at least 60 women and that’s where the focus must be," said Bernard, who was born in Cuba and identifies as black. "Race has nothing to do with it.”

After several courtroom defeats, Cosby is trying to make race an issue in his criminal sexual abuse case. In a series of court filings that will be the subject of pretrial hearings that open this week, the comedian's lawyers say he is a victim of prejudice.

"What about us black women whom he sexually violated?"

"We cannot ignore the unfortunate role that racial bias still plays in our criminal justice system," the attorneys wrote in their motion to dismiss.

Cosby, 79, has been ordered to stand trial on charges he drugged and molested a white woman, Andrea Constand, in an encounter at his Pennsylvania home in 2004 — the only criminal prosecution to come out of dozens of accusations.

Cosby has pleaded not guilty to the charges, and has denied all accusations, including Bernard's, in court filings and statements. His attorneys declined to speak to NBC News.

Prosecutors and the defense will meet again in a Pennsylvania courtroom starting Tuesday to wrangle over key issues in the case, including whether other Cosby accusers can testify.

Prosecutors want permission to put up to 13 women who say they were drugged and abused on the witness stand, to establish a pattern of behavior dating back to the 1960s. Cosby's lawyers claim prosecutors have stacked that roster with white women in a nod to a racist trope.

"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," the defense wrote in court papers.

Although Cosby's team says there is only one black woman among the 13 potential witnesses, there are actually two who identify as black. Among the almost 60 women who have come forward to accuse Cosby, more than a dozen are black.

Bernard, who founded the group Black Artists in Los Angeles, is not one of the 13 women who might testify in the Pennsylvania case. She says that Cosby drugged and raped her in the early 1990s, when she was guest-starring on the last season of "The Cosby Show."

She blasted his focus on race, including a comparison to a lynch mob made by one of his lawyers last year.

"He is paralleling my holding him accountable for his drugging and raping me, and the other 60 of us holding him accountable for drugging and raping us … to his being a victim of racism, to him being a victim of a modern-day lynching," Bernard said. “What that does is it denigrates the souls of the real heroes of the civil rights movement.”

As a legal strategy, the bias argument is not likely to convince a judge to throw out charges or block witnesses, experts say.

"It won't work," said Wes Oliver, a professor at Duquesne University School of Law and an NBC analyst, explaining that prosecutors can likely justify their witness choices beyond race.

In their own filing, prosecutors called Cosby’s accusations “gratuitous and inflammatory.”

“The Commonwealth’s duty is to do justice for all,” they wrote. “Its selection of victims, accordingly, had nothing to do with race. It dealt only with the highest degree of similarity of the other sexual assaults to the one charged in this case.”

Cosby's lawyers also hinted at race in another line of argument, criticizing Montgomery County DA Kevin Steele for running a "Willie Horton-style" campaign ad that invoked Cosby before getting into office and deciding to file charges in the Constand matter.

Horton is the black convicted murderer and rapist who was the subject of an infamous attack ad against presidential candidate Michael Dukakis that was widely seen as an appeal to racism.

In sharply worded motions filed Monday, Cosby’s attorneys also argued that the 13 potential witnesses are "unreliable" and offered "inconsistent" versions of their stories over the years, and fail to demonstrate a "signature" pattern of conduct. They asked the court to grant a separate hearing to examine the competency of each accuser as a witness.

"There has never been a shred of physical evidence to support such claims, they have never been reported to any authority, and today their stories of 'that night partying with a famous celebrity' are based solely on the tainted, unreliable memories of women, now in their senior years, recalling alleged events from a single encounter from the 1960s, 1970s, or 1980s," his attorneys wrote.

"And, to come up with the required showing of a 'signature,' the Commonwealth reaches for a cliché: a giant in the entertainment industry using his power to take advantage of young aspiring actresses," they continued. “Even if proven (and it could not be), the age-old 'casting couch' is not unique to Mr. Cosby, and thus not a 'signature' nor a basis for the admissibility of these witnesses’ stories, let alone a conviction."

Cosby's lawyers are seeking to dismiss or weaken the prosecution's case on several other fronts, including:

  • They argue that a deposition he gave in 2005 for a civil suit filed by Constand, in which he discussed giving Quaaludes to women before sex, should be kept out of the trial because he only gave it after being promised he would not be charged criminally. The court has already ruled that the earlier decision not to charge Cosby was not binding and that the current case should go forward.
  • The lawyers say that Cosby has registered as "legally blind," and that his failing eyesight, along with a fading memory, means that he cannot remember of recognize his accusers, depriving him of the ability to assist in his defense. Oliver said that argument is a longshot. "I've had clients who had amnesia and courts have said that wasn't enough," he said.

The Washington Post’s count of women accusing Cosby of sexual misconduct was 58 as of May 2016. Twenty-seven of them appeared in a Dateline group interview in October 2015.

In a statement issued in response to Montgomery County prosecutors’ most recent legal motion, Cosby’s attorneys said, "The Commonwealth admits that it wants to try him for 40 and 50-year-old accusations, many of which were raised for the first time in press releases and on talk shows, and that have never made their way to any courtroom or police station in this country. If our justice system is allowed to be distorted and abandoned for Mr. Cosby, none of us are safe."