Bill Cosby’s attorneys failed on Tuesday to have sexual assault charges against him dropped, moving the case one step closer to trial.
District Judge Elizabeth McHugh found that prosecutors have enough evidence to move ahead on the three counts of indecent criminal assault from an episode more than a decade ago.
“Mr. Cosby, good luck to you, sir,” McHugh said.
“Thank you,” said Cosby, 78. He then hugged his attorneys and exited the Montgomery County Courthouse in Norristown without any comments.
If convicted, Cosby could be sent to prison for 10 years.
Andrea Constand told police that “everything was blurry and dizzy,” and she could barely keep her eyes open after she says Bill Cosby gave her pills the night the entertainer allegedly sexually assaulted her, according to testimony from a prosecution witness.
Constand did not take the stand on Tuesday for the preliminary hearing, as some observers were anticipating, but prosecutors called former Montgomery County detective Katherine Hart, who read from statements the accuser gave to police a year after the 2004 incident.
Hart said Constand had no sense of time and had no thought about calling 911 during this hazy state. Hart said Constand does, however, remember Cosby assaulting her. She said Constand also recalled awakening and feeling like she had been violated.
Cosby defense attorney Brian McMonagle stressed that Constand “voluntarily” took the pills. And he questioned how she was so aware of the assault if she were in and out of consciousness.
“Did she ever tell Mr. Cosby no?” McMonagle said.
‘Unprecedented denial’ of right to confront accuser
Prosecutors’ decision not to call Constand to the stand during the key pretrial hearing drew fire from McMonagle.
Having another person recount what happened, McMonagle argued, is tantamount to hearsay.
But the Pennsylvania Superior Court has said that hearsay is sufficient evidence during a preliminary hearing. The Pennsylvania Supreme Court is now reviewing that decision.
“I have never once had a sexual assault case where the prosecution has attempted to rely on hearsay victim testimony to establish [the] case,” McMonagle told the judge. “I would say to this court that that’s unprecedented. That would be a complete denial of a defendant’s right to confrontation. It will have a lasting affect of the citizens of this Commonwealth.”
But McHugh allowed it.
Montgomery County District Attorney Kevin Steele and McMonagle sparred over the level of cross-examination permitted.
When McMonagle’s questioning veered toward the detective’s credibility, Steele objected, and, many times, the judge sustained the objection.
“So I should just leave?” McMonagle said at one point.
“I don’t know what we’re doing here. I really don’t,” he said, adding that he should be able to deeply question the witness. “This makes this entire hearing meaningless.”
McHugh said, however, she understood McMonagle’s concern.
“As the DA said, it is a credibility issue, and that is not something I determine at this level,” McHugh told the defense attorney.
His own words
In addition to former detective Hart, Steele used another law enforcement official to introduce Cosby’s own 2005 statement to police as evidence against him.
Cheltenham Police Chief John Norris read from the comedian’s interview with detectives, filling in some details from that night and corroborating parts of Constand’s story.
“Andrea had this tension, whatever,” read Cosby’s interview. “We talked about her eyeballs moving whenever she tried to sleep.”
So, he said, he gave her what he used to fall asleep: “Benadryl.”
Norris also read parts of the statement that covered conversations Cosby had with Constand’s mother, who called him from her home in Ontario.
“Three times the mother says to me, ‘What you’ve done to my daughter is a terrible thing,'” said Cosby in the statement. The comedian said they discussed Constand’s plans for grad school, and Cosby offered to “pick up the tab” of her degree if she maintained a 3.0 grade-point average.
On cross-examination, McMonagle drew out differences between the two accounts, focusing on the pre-existing relationship between Cosby and Constand.
Throughout the hearing, Cosby’s attorneys attempted to focus on issues of witness credibility and consent, over objections from prosecutors.
A former friend and mentor
Constand first met Cosby more than a decade ago while she was working for Temple University’s women’s basketball team. At that time, she viewed Cosby as a friend and a mentor.
And so, Cosby’s invitation to Constand, then 30, that she come to his large Cheltenham Township home on Jan. 4, 2004, for dinner and career advice did not seem out of the ordinary.
The exact events that unfolded that night have been the subject of much dispute and civil litigation. In December, prosecutors said Cosby’s actions that evening amounted to criminal sexual assault.
At the time, Constand was mulling over whether to leave women’s basketball, though just the thought of it made her tense. To help her relax, Cosby gave her three pills. Later, in a lawsuit, she said she thought the pills were herbal medication.
Cosby, on the other hand, maintains that the pills were Benadryl.
Whatever the tablets were, they had an immediate and powerful 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.
Cosby, meanwhile, stayed in touch with Constand and the woman’s parents. She really grappled with whether she would ever report him, given his celebrity and stature at Temple. But she confided in her mother, who was supportive and demanded that Cosby apologize. He did, and he also offered to set up an educational fund in Constand’s name.
Reviving an old case
Turning down the offer, Constand made another choice — to bring her case to police in Ontario, who referred her to the Montgomery County District Attorney’s office.
Then-District Attorney Bruce Castor refused to press criminal charges, a move he announced in a press release.
Later, Castor said charging Cosby would break an old promise he made to the entertainer not to do so, which he said was part of a deal connected to Constand’s 2005 civil suit. In return, Cosby’s lawyers sat for a deposition in a Philadelphia hotel that eventually led to an out-of-court settlement.
During questioning in the civil case, Cosby admitted in the past he had bought Quaaludes to give to women before sexual encounters.
“What was happening at that time was that, that was, Quaaludes happen to be the drug that kids, young people, were using to party with, and there were times when I wanted to have them just in case,” Cosby said under oath before admitting that he had obtained them to give to women he intended to have sex with.
Last year, a judge unsealed the bombshell deposition testimony at the request of the Associated Press, touching off a wave of allegations from more than 50 women who came forward with their own accounts of sexual assault at the hands of Cosby.
The deposition also spelled out what the comedian said happened during his 2004 encounter with Constand, which he said was consensual.
Based on his account, details from that night missing from Constand’s account were filled in, upping the severity of the alleged assault and extending the statute of limitations for her criminal case.
Just before that statute 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, and each is punishable up to five to 10 years in prison.
Cosby, who turns 79 in July, has fought to have the charges tossed, arguing that Castor’s oral promise of immunity constituted a non-prosecution agreement, shielding the comedian from ever facing criminal charges.
His lawyers unsuccessfully argued this case in trial court and the state’s two intermediary appeals courts, delaying the original date of the preliminary hearing by three months.
On Monday, the Pennsylvania Supreme Court denied the entertainer’s attempt to delay the preliminary hearing.
Cosby waived his appearance for the next court date, on July 20, for an arraignment.
WHYY reporter Laura Benshoff contributed to this report.