Montgomery County Judge Steven O’Neill denied Bill Cosby’s appeal seeking to have his charges dismissed, moving the entertainer’s case toward trial.
Cosby has a formal arrangement scheduled for July 20.
Cosby’s attorneys tried to have the charges thrown out or else secure a new preliminary hearing by arguing that the entertainer’s due process rights were violated by not being able to cross-examine his accuser during a May 24 preliminary hearing.
It was determined at the May hearing, based on statements read by police, that there was enough evidence to move the first criminal charges against Cosby toward trial.
Defense attorney Christopher Tayback argued that because Cosby could not confront his accuser, Andrea Constand, the case should be dismissed. Otherwise, the case should be sent back to the magistrate judge for a preliminary hearing where Constand would testify.
“We shouldn’t be relying on, ‘but someone said, someone said,’” Tayback said.
After the hearing, Montgomery County District Attorney Kevin Steele countered that Cosby’s attorneys thought they had a special right to question the accuser before trial.
“They do not. There’s a rule that says otherwise. There’s case law that says otherwise,” he said. “And so, we operated under that, and following the rules, which seemingly don’t apply to them.”
Perfectly proper evidence
O’Neill said the law of Pennsylvania makes hearsay perfectly proper evidence in a preliminary hearing in Pennsylvania, and that there was enough evidence presented to move Cosby’s case forward.
Under the state rules, second- or third-hand testimony, known as hearsay, is enough to establish that a crime was committed at a preliminary hearing, though that rule is now under review by the state’s high court. Oral arguments in that case are expected to take place in the fall.
Montgomery County Assistant District Attorney Bob Falin said Cosby will have the opportunity to confront Constand during trial, noting that issues such as the weight of the evidence and how credible witnesses are can be probed during trial.
“What’s the point of making a victim of a violent sexual crime come in and face the accused and face aggressive cross-examination?” Falin said.
When asked by O’Neill whether the district attorney’s office is shielding Constand because it’s a special case, Steele replied no, all sexual assault cases will be handled like this one in order to avoid putting accusers on the stand during preliminary hearings.
“It’s our position that we’re not going to retraumatize victims,” Steele said.
As for Cosby, “justice has been delayed too long,” he said. “If I could, I would pick a jury tomorrow.”
Encounter in Cosby’s Cheltenham home
Constand and Cosby met more than a decade ago while she was working for Temple University’s women’s basketball team. Given Cosby’s stature, Constand viewed him as a career mentor.
On the night of Jan. 4 2004, Cosby invited Constand, then 30, to his Cheltenham Township mansion.
What transpired that night has been fiercely disputed for years. But prosecutors now say whatever happened amounted to criminal sexual assault.
In December, Montgomery County prosecutors filed the first criminal charges against Cosby after more than 50 women came out accusing the entertainer of sexual misconduct.
According to court documents, Cosby gave Constand three pills to relax during the January 2004 encounter as she confided in Cosby about maybe leaving the women’s basketball team, a prospect that caused her much distress. Later in a civil lawsuit, she said she had thought the pills were herbal medicine.
Cosby said the pills were Benadryl and that the sexual contact that night was consensual.
Whatever the tablets were, they had an instant and potent effect. After swallowing them with a bottle of water, Constand’s knees started to buckle and she began to lose consciousness, according to court documents.
Around 4 a.m., Constand recounted feeling sore with her clothes and undergarments in disarray, according to her 2005 civil suit.
Constand left Philadelphia after the end of the season and moved to Ontario, where she began her training to become a massage therapist.
Last year, a judge unsealed the bombshell deposition testimony at the request of the Associated Press, unleashing a wave of allegations from dozens of women who came forward with their own accounts of sexual assault at the hands of Cosby.
Just before the 10-year statute of limitation was set to expire, the Montgomery County District Attorney’s office charged Cosby with three counts of aggravated indecent assault.
The charges are a first-degree felony in Pennsylvania, and each is punishable up to five to 10 years in prison.
Cosby, who turns 79 next week, has fought relentlessly to have the charges dropped, insisting that an oral promise of immunity made by former District Attorney Bruce Castor constituted a nonprosecution agreement, shielding the comedian from ever facing criminal charges.
His lawyers unsuccessfully argued that case in trial court and the state’s two intermediary appeals courts, delaying the original date of the preliminary hearing by three months.