What to expect at Cosby’s criminal hearing Maria Puente
Will the criminal sexual assault charges against Bill Cosby ever go to trial? A hint may come Tuesday in a courthouse outside Philadelphia.
Cosby faces his first hearing on criminal charges that he hopes to persuade a judge to dismiss.
And some legal analysts say Cosby may succeed.
“I feel that, unfortunately, the current prosecutor has overstepped his bounds,” says New York lawyer Jerry Reisman, who has been following the case. “A former prosecutor made a representation on behalf of his office ... that he would not prosecute (Cosby), so unless they can find some new circumstance, such as fraud, I feel that the case should be dismissed.”
Here’s the setup:
THE CASE:
The actor/comedian, 78, is charged with felony aggravated indecent assault and accused of drugging and sexually assaulting ex-Temple University employee Andrea Constand at his home in Montgomery County, Pa., in 2004. Cosby says the encounter was consensual.
PRESIDING:
Montgomery County Judge Steven O’Neill. The hearing ’s focus: Was there a no-prosecution deal covering Cosby; is such a deal binding and enforceable now; and if the answer is yes, should O’Neill grant Cosby’s motion to dismiss the charges?
THE PROSECUTOR:
County District Attorney Kevin Steele, elected in November after vowing to pursue Cosby. He plans to use Cosby’s words in a deposition in Constand’s 2005 civil suit to argue that a crime occurred.
THE FORMER PROSECUTOR:
Bruce Castor, who was defeated by Steele. Castor says — and is expected to testify as Cosby’s witness — that he promised Cosby and his then-lawyer (now dead) Walter Phillips Jr., that if Cosby testified fully in a deposition in Constand’s 2005 civil suit, Castor would never use the testimony against him.
THE DEFENDANT’S BAGGAGE:
Five dozen women have accused Cosby of drugging and/or sexually assaulting them dating to the mid-1960s.
THE ARGUMENTS:
Steele says any deal should have been written down and approved by a judge, and since it wasn’t, it’s not binding on him, and it’s not enforceable. Therefore, the case against Cosby should proceed.
Reisman says the judicial system can’t function if lawyers can’t rely on the representations of other lawyers and prosecutors.
But, he concedes, “Cosby’s lawyers (in 2005) were negligent in not having this (deal) ... in writing.” Still, “the judge is doing the right thing in conducting a hearing and letting each side present its case.”
Defense lawyer Kevin Sali of Portland, Ore., who also has been following the case, says Contract Law 101 is clear about oral-vs.-written deals. “An oral agreement is just as binding as a written agreement, with some exceptions (not relevant here),” he says. “If one prosecutor makes an otherwise enforceable deal, it is binding on subsequent prosecutors.”
JUDGE’S POSSIBLE OPTIONS:
He could rule the deal is not binding, not enforceable, and not relevant to this case. Then a new hearing would proceed on Cosby’s other reasons for his motion to dismiss. Cosby could then appeal, thus delaying a trial.
Another option, Sali says, is that the judge could rule there was a deal, it is binding and enforceable, and dismiss the charges.
Or, the judge could rule that Steele can proceed with his case but can’t use Cosby’s deposition testimony. That would return the parties “back to their positions in 2005,” Sali said.
If that happens, it’s once again Constand’s word against Cosby’s.