Should the accounts of more than a dozen women who say Bill Cosby sexually assaulted them have a role in his criminal trial?
Prosecutors hope to introduce 13 accounts to support their charge that Cosby had a pattern of intentional sexual assault that continued with complainant Andrea Constand.
In 2004, Cosby invited then 31-year-old Constand to his home in Cheltenham, where she said he gave her pills and wine that made her feel “dizzy” and “paralyzed” before allegedly assaulting her.
Cosby has said their encounter was consensual.
Under Pennsylvania criminal law, prior bad acts are admissible as evidence if they have a high value in proving some aspect of a case and if they are very similar to the alleged crime.
Cosby’s defense team argued that the women’s stories are so vague as to be “impossible” to defend in court.
Referring to one accuser, defense attorney Brian McMonagle looked over at his client and said, “Defend that, Mr. Cosby. Where were you sometime in the 1970s?”
Wednesday morning, Montgomery County District Attorney Kevin Steele walked through the 13 women’s stories, drawing parallels between their experience and that of Constand.
Each of the 13 prior accusers described taking pills or a drink that sent them in and out of consciousness during subsequent sexual encounters with Cosby.
“The defendant did not mistakenly believe Ms. Constand was awake or gave consent,” said Steele during the second day of a pretrial hearing.
“He strikes when he’s got the access,” Steele said of the locations and the timing of the alleged assaults. “He’s got the setting … areas he controls,” such as his homes, hotel rooms and dressing rooms.
The fact that the accusers’ memories may be patchy or fuzzy doesn’t detract from their believability, according to Steele, but is instead is a testament to how successful Cosby was in committing his crimes.
“He has been able to keep people quiet because they’re confused, because they are trying to piece together what has happened to them,” he said.
‘Impossible’ to defend
In fighting to block the women’s testimony, defense attorneys questioned not only the credibility of their claims but the entire premise of the criminal case.
“This case never had to do with Andrea Constand,” said McMonagle. “This case was nothing more than an attempt to vindicate a bandwagon of claims.”
In its arguments, the defense team also accused the prosecutors of not investigating the women’s claims and of accepting testimony cooked up by celebrity attorney Gloria Allred.
“They took the stories that Ms. Allred carefully crafted,” said Cosby attorney Angela Agrusa. “She executed a plan and she got the DA’s office to be her bagman.”
Speaking to the press after the hearing, Allred called the attacks a tactic attorneys use when the law is not on their side.
While prosecutors have argued that the credibility of the women’s accounts, which span the early 1960s to the 1990s, is not on the table at this phase of the trial, the defense honed in on vague or inconsistent details.
Locations such as “some ranch house in Nevada” or “maybe Harrah’s” in the alleged assaults make it “impossible” for Cosby to defend himself against the claims, his attorneys said.
If O’Neill rules to allows the these witnesses, said McMonagle, “We might as well go home. It’s an impossible mission.”
Under the relevant law, the witnesses should be excluded if the effect is to bias a jury against the presumption of innocence of the defendant, a test McMonagle said this evidence failed.
Steele defended what Cosby’s legal team hammered as weaknesses — the time lag in coming forward, the women’sr fuzzy memories, the Facebook support groups of Cosby “survivors” — as part of the uniquely high profile nature of the defendant.
“The reason they didn’t come forward?” he said, referring to their interviews.
“‘Because it’s Bill Cosby. Who’s going to believe me?'”
At the end of the Wednesday hearing, O’Neill did not put a time limit on his ruling.