Clearer path to Cosby trial
Sexual assault case against him now appears likely to go before a jury
Bill Cosby suffered a defeat in court Wednesday evening.
Actually, he suffered two defeats.
In addition to rejecting a bid to dismiss the three counts of sexual assault against him, a Pennsylvania judge also turned down a request by Cosby’s lawyers to remove newly elected Montgomery County Dist. Atty. Kevin Steele from the case. Steele had campaigned on a prosecute-Cosby platform, and the defense said he couldn’t argue it fairly.
The judge, Steven O’Neill, disagreed.
Wednesday’s developments mean the road to a trial is now a lot clearer. Instead of going away, the charges will now yield a preliminary hearing on March 8 to determine whether the prosecution has enough evidence to win in front of a jury. If the judge — a new one, Elizabeth McHugh — determines it does, the case moves to a full- blown trial. Experts think this is likely to happen.
A trial would be a weighty affair. The incident in early 2004, in which Cosby provided unidentified pills at his Pennsylvania home to former Temple University basketball employee Andrea Constand and then penetrated her with his fingers, is charged in its own right.
Was the act consensual, as Cosby has argued? Or was it an unwanted and illegal violation, as the prosecution has said?
Victims of sexual assault and women’s groups, however, see a larger issue. A trial, they say, would offer a chance to level the scales with Cosby, against whom more than 50 other women have made similar accusations, and even settle the score in what they argue is a larger culture of privileged men who routinely get away with sex crimes.
Just a few days ago, the defense looked like it had a chance to make the charges disappear.
So how did we get to this place? Here’s how Cosby’s case stalled in a Pennsylvania courtroom.
The agreement
The defense’s star witness was Bruce Castor. Castor was district attorney when the incident happened, and the person who the defense said made an ironclad oral agreement not to prosecute Cosby in perpetuity.
Castor said he had told his intentions to Walter Phillips, Cosby’s longtime criminal attorney, and no one else. The problem is Phillips died last year, leaving only one side of the party to testify to it. What’s more, Castor shied away from actually calling it an agreement — he demurred when pressed by attorneys. O’Neill sought to clarify: “So it was an agreement with yourself?”
Why would Castor make such an agreement? He has some unconventional reasoning. More on that in a bit.
The news release
To provide evidence for this promise, Castor and the defense pointed to a 2005 news release announcing Castor’s intention not to prosecute Cosby. Castor took the unusual step of writing and signing it himself, which the defense argued gave it legal force. But Judge O’Neill queried him on why, if he was making a binding commitment, he didn’t tender something more official, pointing out the ways he could have filed it with the court.
Equally problematic for the defense was the phrasing in the news release. Castor wrote in it that he would “reconsider this decision should the need arise” — fairly open language that leaves room for it to be recanted.
5th Amendment
Castor said he personally believed Cosby was probably guilty. But he didn’t think the case was winnable, and opted against prosecuting to help the victim — by doing so, he said, he would remove Cosby’s privilege to plead the 5th Amendment in a civil suit.
The argument was undercut, however, when lawyers for the victim, Dolores Troiani and Bebe Kivitz, testified that Castor had never informed them of this rationale, a notable omission if he was in fact trying to help their case. And the idea of a prosecutor acting on this motivation is odd, experts say.
“When you cut a deal to give someone immunity you want to get something in return,” said Dennis C. McAndrews, a former Philadelphia- area prosecutor, noting such benefits as witness testimony. “It’s not a prosecutor’s job to enhance a civil case for a victim.”
The deposition
Part of why the defense argued the case shouldn’t move forward is because Steele reopened the investigation in the wake of the unsealing last summer of a deposition from the 2005 civil suit.
In it, Cosby admitted he had previously bought Quaaludes to facilitate sex with women. And that testimony, the defense argued, was given when Cosby believed he had criminal immunity.
The judge, however, noted that details from the deposition were only a part of Steele’s case — and, in any event, the specific matter of whether the deposition material was admis- sible could be argued in a separate hearing without derailing the whole case.
That hearing is, in fact, one of several legal matters that could be decided in advance of a trial. Another could involve Cosby’s competency to stand trial in the first place. He’s 78, appears frail, and his vision problems have been on display this week, with aides guiding him and out of the courthouse.
Also coming under scrutiny in a likely pretrial hearing is the hot- button question of whether testimony from other women Cosby allegedly assaulted will be allowed.
Pennsylvania does allow such testimony if it’s pertinent in establishing a pattern of conduct or signature crime.
That matter will be decided in a motion in limine, in which prosecutors will probably argue that the testimony is necessary for exactly these reasons and a defense will contend that it’s irrelevant to this case.
One alleged victim who will certainly be testifying is Constand.
She is likely to take the stand on March 8, as prosecutors seek try to convince a judge that there is sufficient evidence to win a case. She’ll offer her version of what happened that night in Cosby’s home.
The trial will have not yet begun, but the media storm certainly will.