Legal battle brewing in Cosby case
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.