Le­gal bat­tle brew­ing in Cosby case

Daily Local News (West Chester, PA) - - FRONT PAGE - By Carl Hessler Jr. chessler@21st-cen­tu­ry­media.com @Mont­coCourtNews on Twit­ter

NOR­RIS­TOWN >> They are iden­ti­fied in court pa­pers as “Prior Vic­tim One to Thir­teen,” for­mer Play­boy Club work­ers, mod­els, as­pir­ing ac­tresses and com­edy writ­ers, flight at­ten­dants, cock­tail wait­resses, and sec­re­taries, and they could play a sig­nif­i­cant role in the al­leged sex­ual as­sault trial of en­ter­tainer Bill Cosby.

Mont­gomery County Dis­trict At­tor­ney Kevin R. Steele al­leges the uniden­ti­fied women were vic­tims of Cosby’s un­charged sex­ual mis­con­duct from the 1970s through the 1990s and should be per­mit­ted to tes­tify at Cosby’s trial on charges he sex­u­ally as­saulted one woman, An­drea Con­stand, at his Chel­tenham man­sion in 2004. Steele ar­gues the tes­ti­mony is rel­e­vant “to es­tab­lish a com­mon plan, scheme or de­sign” for the jury.

“Dur­ing the course of this case, the com­mon­wealth in­ves­ti­gated nearly fifty women al­leg-

edly vic­tim­ized by the de­fen­dant. What be­came clear was that de­fen­dant has en­gaged, over the course of his life­time, in a pat­tern of se­rial sex­ual abuse,” Steele wrote in court pa­pers.

But de­fense lawyer Brian J. McMona­gle claims the pros­e­cu­tion is at­tempt­ing “to bol­ster its weak case” with the tes­ti­mony of 13 other women and that such tes­ti­mony would be un­fairly prej­u­di­cial to Cosby and should not be per­mit­ted. McMona­gle ar­gues due to the pas­sage of time, “Cosby can­not even prove where he was at the time of many of the al­leged in­ci­dents” and that the ac­cusers’ al­le­ga­tions are “vague.”

“The com­mon­wealth’s strat­egy mag­ni­fies the un­fair prej­u­dice to Mr. Cosby sig­nif­i­cantly. Ten of these ac­cusers did not come for­ward un­til more than a decade after the com­mon­wealth’s highly pub­li­cized 2005 in­ves­ti­ga­tion. These ten ac­cusers chose to wait un­til 27 to 46 years after the al­leged in­ci­dents and after Mr. Cosby had gone blind,” McMona­gle and co-de­fense lawyer An­gela C. Agrusa wrote in court pa­pers.

Judge Steven T. O’Neill will be­gin weigh­ing the ad­mis­si­bil­ity of the so-called “prior bad acts” when he holds a pre­trial hear­ing on the mat­ter be­gin­ning Tues­day. It hasn’t been re­vealed if pros­e­cu­tors will present any of the un­named women to tes­tify at that hear­ing.

But lo­cal le­gal ex­perts agree it’s a key pre­trial bat­tle that could de­ter­mine the path that the lone crim­i­nal pros­e­cu­tion pend­ing against Cosby takes.

“That’s what this case boils down to. That’s the whole thing. The more of that that comes in, the more help­ful it is to the pros­e­cu­tion, plain and sim­ple,” said crim­i­nal de­fense lawyer Jor­dan Friter. “That is ‘THE’ court­room bat­tle in this case. That has to be the goal of the de­fense from Day One - to keep as much of that, if not all of it, out as is cer­tainly pos­si­ble.”

“Given the other rul­ings that have al­ready been made, this is the largest rul­ing that is left. And if the de­fense is hand­i­capped be­cause the gov­ern­ment is suc­cess­ful in lit­i­gat­ing this mo­tion so the ev­i­dence is all go­ing to come in, then it’s go­ing to be an avalanche of new ev­i­dence which is go­ing to have to be gone over by the de­fense and re­but­ted on a case-by-case ba­sis by the de­fense,” added Nor­ris­town crim­i­nal de­fense lawyer Thomas C. Egan III.

Egan and Friter, each a for­mer pros­e­cu­tor turned de­fense lawyer, have han­dled their fair share of high­pro­file lo­cal cases in county court but are not con­nected to the Cosby case.

So-called “prior bad acts” are some­times al­lowed at trial but judges scru­ti­nize such re­quests very care­fully and re­quire pros­e­cu­tors to prove they’re rel­e­vant.

“As a de­fense lawyer, I would ar­gue vig­or­ously to keep it out. The key to any trial is that the judge pro­vides a fair trial to the pros­e­cu­tion and to the de­fense,” said Lower Me­rion crim­i­nal de­fense lawyer Cary B. McClain, also a for­mer pros­e­cu­tor, who is not con­nected to the Cosby case.

De­po­si­tion and claims by other ac­cusers

Cosby, 79, faces a June 5, 2017, trial on charges of ag­gra­vated in­de­cent as­sault in con­nec­tion with his al­leged con­tact with Con­stand, a for­mer Tem­ple Univer­sity ath­letic depart­ment em­ployee, after ply­ing her with blue pills and wine at his Chel­tenham home some­time be­tween mid-Jan­uary and mid-Fe­bru­ary 2004.

The case rep­re­sents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime de­spite al­le­ga­tions from dozens of women who claimed they were as­saulted by the en­ter­tainer. Cosby has been named in sev­eral civil law­suits filed by women who claim he vi­o­lated them too.

Cosby claims he was prej­u­diced by a decade-old de­lay in bring­ing sex­ual as­sault charges against him and that the charges should be thrown out.

But Steele has said pros­e­cu­tors re­opened the crim­i­nal in­ves­ti­ga­tion in July 2015 after seg­ments of Cosby’s de­po­si­tion con­nected to a 2005 civil suit brought against him by Con­stand were un­sealed by a fed­eral judge. In that de­po­si­tion, Cosby gave dam­ag­ing tes­ti­mony, al­legedly ad­mit­ting he ob­tained Quaaludes to give to women with whom he wanted to have sex. Pros­e­cu­tors con­tend Cosby also ad­mit­ted for the first time that he had sex­ual con­tact with Con­stand. Cosby has sug­gested it was con­sen­sual con­tact.

“The re­lease of these de­po­si­tions gen­er­ated a great deal of pub­lic­ity, as well as a num­ber of pub­lic claims by women who al­leged Cosby had as­saulted them un­der cir­cum­stances sim­i­lar to those re­ported by (Con­stand),” pros­e­cu­tors al­leged in the ar­rest af­fi­davit.

Le­gal in­sid­ers be­lieve the key to the pros­e­cu­tion’s case against Cosby is the ad­mis­si­bil­ity of ev­i­dence in­volv­ing al­leged vic­tims who came for­ward after Con­stand’s al­le­ga­tions.

“That’s what this case boils down to. That’s the whole thing. The more of that that comes in, the more help­ful it is to the pros­e­cu­tion, plain and sim­ple.” — crim­i­nal de­fense lawyer Jor­dan Friter “It will not set any prece­dent in the county — the le­gal stan­dards are the le­gal stan­dards. But it’s go­ing to be in­ter­est­ing to see how Judge O’Neill ap­plies them to the par­tic­u­lar facts of this case.” — crim­i­nal de­fense lawyer Thomas C. Egan III “It’s im­pos­si­ble to de­fend against those cases and you’re go­ing to have a case within a case, within a case, and it’s go­ing to con­fuse the jury and it is way too prej­u­di­cial.” — crim­i­nal de­fense lawyer Cary B. McClain

Prior bad acts can be “in­cred­i­bly dam­ag­ing”

When prior bad acts tes­ti­mony is ad­mis­si­ble, it can be “in­cred­i­bly dam­ag­ing,” Friter said.

“Once ju­ries start to hear about a per­son’s other con­duct, which is some­thing that’s al­ways in the back of their minds, and they hear about things that a per­son may have done in the past, that makes it a tough hill to climb (for the de­fense),” Friter said.

“If the gov­ern­ment’s al­lowed to in­tro­duce this ev­i­dence it is not just one al­leged vic­tim who is mak­ing al­le­ga­tions against Mr. Cosby, it is a whole host of them, all of whom do not know each other. So it has a ten­dency to give greater cre­dence to what these other peo­ple are say­ing…,” Egan added. “If they can’t in­tro­duce that ev­i­dence, then it’s the pros­e­cu­tion case ris­ing and fall­ing on the word of one al­leged vic­tim.”

Be­fore putting on his de­fense hat, Friter, as a pros­e­cu­tor, was cap­tain of the dis­trict at­tor­ney’s sex crimes unit and in that ca­pac­ity did file re­quests to ad­mit prior bad acts at some tri­als.

“As a pros­e­cu­tor that’s one of the most pow­er­ful weapons you have is to be able to bring in some­one’s prior al­leged con­duct be­cause nor­mally it’s com­pletely off lim­its. But, es­pe­cially in a sex­ual as­sault case, if you can get it out there that a per­son has done the ex­act same thing be­fore, in a jury’s eyes, that’s just pow­er­ful ev­i­dence of guilt,” said Friter, speak­ing gen­er­ally.

“I had cases where it came in and cases where it didn’t. The cases where it came in they ended up be­ing suc­cess­ful pros­e­cu­tions, I think in large part be­cause of that, ab­so­lutely, there’s no deny­ing it,” said Friter, adding in a case where it’s one per­son’s word against an­other’s and you have some­thing to “tip the scale” in fa­vor of the vic­tim “it’s hard for the de­fense to over­come that.”

McClain said it’s dif­fi­cult for a de­fense lawyer to wage a fight against an ac­cuser’s tes­ti­mony about some­thing that al­legedly hap­pened decades ago un­der cir­cum­stances where there are no po­lice re­ports, no video and no other wit­nesses to the in­ci­dent.

“It’s im­pos­si­ble to de­fend against those cases and you’re go­ing to have a case within a case, within a case, and it’s go­ing to con­fuse the jury and it is way too prej­u­di­cial,” McClain main­tained.

On the other hand, the le­gal ex­perts said, with no po­lice re­ports avail­able to cor­rob­o­rate the other ac­cusers’ al­le­ga­tions of sex­ual mis­con­duct, Cosby’s lawyers could ar­gue the ac­cusers’ claims are sus­pect.

“You also have the is­sue of mak­ing a sex­ual as­sault trial into larger tri­als on the sex­ual as­sault al­le­ga­tions made by all these other women. If the de­fense is go­ing to lit­i­gate it prop­erly they’re go­ing to have to treat each one of those as a sep­a­rate sex­ual as­sault trial to un­der­mine the cred­i­bil­ity of each one of those,” Egan said.

Re­gard­less how O’Neill rules, it’s not likely to set any prece­dent, ex­perts said.

“It will not set any prece­dent in the county - the le­gal stan­dards are the le­gal stan­dards. But it’s go­ing to be in­ter­est­ing to see how Judge O’Neill ap­plies them to the par­tic­u­lar facts of this case,” Egan said.

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.


Bill Cosby de­parts after a pre­trial hear­ing in his sex­ual as­sault case at the Mont­gomery County Court­house in Nor­ris­town Tues­day, Sept. 6.

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