Obstacles await as Cosby case moves ahead
The evidence — and whether it can be heard — is key
As the criminal justice system creaks closer to a sexual-assault trial for Bill Cosby, legal analysts are speculating about potential legal obstacles for both the prosecution and Cosby’s defense team.
One of the most important questions: What evidence is there, and what will be admissible?
Twelve years after the 2004 encounter between Cosby and ex-Temple University employee Andrea Constand at his home outside Philadelphia, what evidence can prosecutors offer to prove Cosby committed a crime other than Constand’s word against his?
District Attorney Kevin Steele says he has “new” evidence, namely Cosby’s own words in a deposition he gave in Constand’s civil suit against Cosby, settled and sealed in 2006, then released in part by a judge in 2015 at the request of the Associated Press.
But Wednesday’s ruling by Montgomery County Judge Steven O’Neill — rejecting Cosby’s motion to dismiss the charges of felony indecent sexual assault — covered only the question of whether Cosby received a valid “no-prosecution” deal from ex-District Attorney Bruce Castor in 2005. O’Neill ruled he did not.
So the case against Cosby moves a step closer to a full trial, but will there be one?
“The chances of a trial are great because Bill Cosby is not taking a plea, (Steele) is not offering a plea that Bill Cosby would even consider, and there is legally sufficient evidence to charge him based on the testimony of (Constand) alone,” says New York defense attorney Stuart Slotnick, who has been following the case.
Constand says Cosby drugged and raped her; Cosby says their encounter was consensual. She-said-he-said cases, absent foren- sic and witness evidence, go to trial all the time, Slotnick says. But they don’t always result in convictions.
“The only way it will not go forward is if she doesn’t cooperate,” Slotnick says. “There is no case without her.”
But O’Neill’s ruling did not cov- er whether Cosby’s deposition will be admissible at trial. Another hearing is set for March 8 to deal with that and other preliminary motions in the case.
Anthony O’Rourke, a professor in criminal law at the SUNY Buffalo Law School, says he believes, based on O’Neill’s ruling, that there is no legal bar to suppress the deposition.
“If the judge had determined that he gave the deposition in exchange for the (no-prosecution) agreement, then that would have been grounds to suppress,” O’Rourke says. “But if the agreement was invalid, then there would be no further legal bar to admitting it. Depositions from civil cases are used in criminal cases all the time.”
Advocates for sexual-assault accusers say Constand’s testimony is sufficient to go to trial. Michelle Dempsey, a professor at the Villanova Law School and adviser to the Villanova Law Institute to Address Commercial Sexual Exploitation, says the dozens of other accusations against Cosby are powerful “evidence” beyond the deposition.
“There is ‘ new evidence’ that justifies reconsidering the original decision not to prosecute, even if the deposition can’t be admitted at trial,” she says.
Slotnick believes the deposition could be admitted, but not all of it.
“Anything directly relating to her is admissible, so his testimony under oath admitting he’s ob- tained some sort of pill to give her, admitting he touched her, that corroborates what she says, and that’s potentially admissible,” Slotnick says.
But more general statements from the deposition, such as Cosby admitting he obtained drugs to give to women he sought for sex, probably would not be admissible because “it’s too prejudicial as opposed to probative,” which is the standard comparison in deciding admissibility, Slotnick says.
The same goes for admitting testimony — to show a pattern of “prior bad acts” — of some of the five dozen women who have accused Cosby of drugging and sexually assaulting them in encounters dating back to the mid-1960s.
“If other (accusers) are allowed to testify, it will be a significant issue for appeal if he is convicted, because that is extremely prejudicial,” Slotnick says.
Another potential problem for the prosecution, Slotnick says, is Constand herself: “There are significant credibility issues with her,” which Castor cited during this week’s hearing to explain in part why he declined to prosecute Cosby in 2005.
According to court documents and to Castor’s testimony, Constand waited a year before complaining about Cosby; she first called police in her native Canada; her story of what happened changed between the time she was first interviewed by Pennsylvania police and when she filed her civil suit; she may have illegally wiretapped Cosby to persuade him to pay her; and her behavior was “inconsistent” with that of a sexual-assault victim, Castor said.
Slotnick says that according to her own story, Constand had two prior encounters with Cosby when he allegedly touched her inappropriately, causing her distress, but she nonetheless agreed to have dinner alone with him at his home a third time when the alleged sexual assault occurred.
“Why would she do that?” he says. “There are so many credibility issues with this complainant that jurors might have a hard time saying guilty.”
“The only way it will not go forward is if (the accuser) doesn’t cooperate. There is no case without her.” New York defense attorney Stuart Slotnick