USA TODAY International Edition
Cosby criminal hearing resumes
Prosecution faces ‘ very low bar, and it’s almost always met’
Bill Cosby’s preliminary hearing on felony sexual assault charges gets underway in suburban Philadelphia on Tuesday, and there’s the possibility of a courtroom confrontation between Cosby and his accuser, Andrea Constand.
Both are likely to be there.
The hearing before Magistrate Judge Elizabeth McHugh in Norristown, Pa., has been delayed since January. It is supposed to decide whether Cosby, 79, should be tried on charges that he drugged and sexually touched Constand, 43, at his home in 2004.
If the judge decides the prosecution has established reasonable cause to believe a crime was committed, a trial date will be set.
The case: Constand, a former Temple University employee, says Cosby, her former mentor, assaulted her when she visited his home in Montgomery County, Pa., in 2004. He says their encounter was consensual. She complained to police a year later, but then- District Attorney Bruce Castor concluded there was not enough evidence to prosecute.
Constand sued Cosby in civil court; they reached a settlement in 2006, which was sealed. In 2015, portions of his deposition in the suit, in which he acknowledged obtaining drugs to give to women he sought for sex, were made public.
District Attorney Keven Steele, who won election in November 2015, campaigned on a promise to prosecute Cosby and charged him in December 2015, days before the statute of limitations ran out.
Earlier legal maneuvers: In February, Cosby failed to get the charges thrown out, arguing that Castor promised not to charge him if he agreed to a deposition in Constand’s suit. His latest appeal on this issue was denied Monday by the state Supreme Court. What does the prosecutor have to do? Steele must persuade the judge there is enough evidence for trial, either by putting Constand on the stand or introducing her “affidavit of probable cause” — what she told police in 2005.
“The prosecution needs to meet a minimum threshold to establish facts to support these charges — it’s a very low bar, and it’s almost always met,” says Stuart Slotnick, a New York defense attorney and former prosecutor. What does the defense have to do? At this stage, it’s “unrealistic” for the Cosby legal team to expect it can get the case dismissed, Slotnick says, so the next best thing is get a better idea of the prosecution’s evidence and start trying to undermine it.
“It’s much better for the defense to cross- exam the complainant in person and establish inconsistencies at this early stage,” he says. “The documents already available show that Ms. Constand has tremendous baggage, inconsistencies and facts that don’t make sense.” What happens if the judge sets a trial date? The two sides will file motions over what evidence will be allowed. The prosecution won’t want any mention of the defense argument that “the case is a political witch hunt” brought because Steele ran on a campaign that he would charge Cosby, Slotnick says. The defense will try to preclude any attempt to bring in other accusers — five dozen women have come forward since October 2014.