[NOTE: Bill Cosby returns to a Montgomery County courtroom next week to try to keep 13 other women, who allegedly accuse him of sexual misconduct, from testifying against him at his upcoming trial for allegedly sexually assaulting one woman at his Cheltenham home. Legal insiders say it's probably the most important legal battle in the criminal case. Recently, I asked some well-known local lawyers what they thought about the battle. Portions of the following report previously appeared in The Mercury, the Times Herald, The Reporter, the Daily Local and the Daily Times. Here's a recap to bring you up to date:]
They are identified in court papers as “Prior Victim One to
Thirteen,” former Playboy Club workers, models, aspiring actresses and comedy
writers, flight attendants, cocktail waitresses, and secretaries, and they
could play a significant role in the alleged sexual assault trial of
entertainer Bill Cosby.
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| Montco DA Kevin R. Steele |
Montgomery County District Attorney Kevin R. Steele alleges the
unidentified women were victims of Cosby’s uncharged sexual misconduct from the
1970's through the 1990's and should be permitted to testify at Cosby’s trial on
charges he sexually assaulted one woman, Andrea Constand, at his Cheltenham
mansion in 2004. Steele argues the testimony is relevant “to establish a common
plan, scheme or design” for the jury.
“During the course of this case, the commonwealth
investigated nearly fifty women allegedly victimized by the defendant. What
became clear was that defendant has engaged, over the course of his lifetime,
in a pattern of serial sexual abuse,” Steele wrote in court papers.
But defense lawyer Brian J. McMonagle claims the prosecution
is attempting “to bolster its weak case” with the testimony of 13 other women and
that such testimony would be unfairly prejudicial to Cosby and should not be
permitted. McMonagle argues due to the passage of time, “Cosby cannot even
prove where he was at the time of many of the alleged incidents” and that the accusers’
allegations are “vague.”
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| Brian McMonagle/Photo by Carl Hessler Jr. |
“The commonwealth’s strategy magnifies the unfair prejudice
to Mr. Cosby significantly. Ten of these accusers did not come forward until
more than a decade after the commonwealth’s highly publicized 2005
investigation. These ten accusers chose to wait until 27 to 46 years after the
alleged incidents and after Mr. Cosby had gone blind,” McMonagle and co-defense
lawyer Angela C. Agrusa wrote in court papers.
Judge Steven T. O’Neill will begin weighing the
admissibility of the so-called “prior bad acts” when he holds a pretrial
hearing on the matter beginning Tuesday. Local legal experts agree it’s a key pretrial battle
that could determine the path that the lone criminal prosecution pending
against Cosby takes.
“That’s what this case boils down to. That’s the whole
thing. The more of that that comes in, the more helpful it is to the
prosecution, plain and simple,” said criminal defense lawyer Jordan Friter.
“That is ‘THE’ courtroom battle in this case. That has to be the goal of the
defense from Day One - to keep as much of that, if not all of it, out as is certainly
possible.”
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| Thomas C. Egan III/Photo by Carl Hessler Jr. |
“Given the other rulings that have already been made, this
is the largest ruling that is left. And if the defense is handicapped because
the government is successful in litigating this motion so the evidence is all
going to come in, then it’s going to be an avalanche of new evidence which is
going to have to be gone over by the defense and rebutted on a case-by-case
basis by the defense,” added Norristown criminal defense lawyer Thomas C. Egan
III.
Egan and Friter, each a former prosecutor turned defense
lawyer, have handled their fair share of high-profile local cases in county
court but are not connected to the Cosby case.
So-called “prior bad acts” are sometimes allowed at trial
but judges scrutinize such requests very carefully and require prosecutors to
prove they’re relevant.
“As a defense lawyer, I would argue vigorously to keep it
out. The key to any trial is that the judge provides a fair trial to the
prosecution and to the defense,” said Lower Merion criminal defense lawyer Cary
B. McClain, also a former prosecutor, who is not connected to the Cosby case.
DEPOSITION AND CLAIMS
BY OTHER ACCUSERS
Cosby, 79, faces a June 5, 2017, trial on charges of
aggravated indecent assault in connection with his alleged contact with Constand,
a former Temple University athletic department employee, after plying her with
blue pills and wine at his Cheltenham home sometime between mid-January and
mid-February 2004.
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| Bill Cosby/Montco Arrest Photo |
The case represents the first time Cosby, who played Dr.
Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a
crime despite allegations from dozens of women who claimed they were assaulted
by the entertainer. Cosby has been named in several civil lawsuits filed by
women who claim he violated them too.
Cosby claims he was prejudiced by a decade-old delay in
bringing sexual assault charges against him and that the charges should be
thrown out.
But Steele has said prosecutors reopened the criminal
investigation in July 2015 after segments of Cosby’s deposition connected to a
2005 civil suit brought against him by Constand were unsealed by a federal judge.
In that deposition, Cosby gave damaging testimony, allegedly admitting he
obtained Quaaludes to give to women with whom he wanted to have sex.
Prosecutors contend Cosby also admitted for the first time that he had sexual
contact with Constand. Cosby has suggested it was consensual contact.
“The release of these depositions generated a great deal of
publicity, as well as a number of public claims by women who alleged Cosby had
assaulted them under circumstances similar to those reported by (Constand),”
prosecutors alleged in the arrest affidavit.
Legal insiders believe the key to the prosecution’s case against
Cosby is the admissibility of evidence involving alleged victims who came
forward after Constand’s allegations.
PRIOR BAD ACTS CAN BE
“INCREDIBLY DAMAGING”
When prior bad acts testimony is admissible, it can be
“incredibly damaging,” Friter said.
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| Jordan Friter/Photo by Carl Hessler Jr. |
“Once juries start to hear about a person’s other conduct,
which is something that’s always in the back of their minds, and they hear
about things that a person may have done in the past, that makes it a tough
hill to climb (for the defense),” Friter said.
“If the government’s allowed to introduce this evidence it
is not just one alleged victim who is making allegations against Mr. Cosby, it
is a whole host of them, all of whom do not know each other. So it has a
tendency to give greater credence to what these other people are saying…,” Egan
added. “If they can’t introduce that evidence, then it’s the prosecution case
rising and falling on the word of one alleged victim.”
Before putting on his defense hat, Friter, as a prosecutor,
was captain of the district attorney’s sex crimes unit and in that capacity did
file requests to admit prior bad acts at some trials.
“As a prosecutor that’s one of the most powerful weapons you
have is to be able to bring in someone’s prior alleged conduct because normally
it’s completely off limits. But, especially in a sexual assault case, if you
can get it out there that a person has done the exact same thing before, in a
jury’s eyes, that’s just powerful evidence of guilt,” said Friter, speaking
generally.
“I had cases where it came in and cases where it didn’t. The
cases where it came in they ended up being successful prosecutions, I think in
large part because of that, absolutely, there’s no denying it,” said Friter,
adding in a case where it’s one person’s word against another’s and you have
something to “tip the scale” in favor of the victim “it’s hard for the defense
to overcome that.”
McClain said it’s difficult for a defense lawyer to wage a
fight against an accuser’s testimony about something that allegedly happened
decades ago under circumstances where there are no police reports, no video and
no other witnesses to the incident.
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| Cary B. McClain/Photo by Carl Hessler Jr. |
“It’s impossible to defend against those cases and you’re
going to have a case within a case, within a case, and it’s going to confuse
the jury and it is way too prejudicial,” McClain maintained.
On the other hand, the legal experts said, with no police
reports available to corroborate the other accusers’ allegations of sexual
misconduct, Cosby’s lawyers could argue the accusers’ claims are suspect.
“You also have the issue of making a sexual assault trial
into larger trials on the sexual assault allegations made by all these other
women. If the defense is going to litigate it properly they’re going to have to
treat each one of those as a separate sexual assault trial to undermine the
credibility of each one of those,” Egan said.
Regardless how O’Neill rules, it’s not likely to set any
precedent, experts said.
“It will not set any precedent in the county - the legal
standards are the legal standards. But it’s going to be interesting to see how
Judge O’Neill applies them to the particular facts of this case,” Egan said.
Stay tuned, I'll be in the courtroom on Tuesday to give you the latest developments when Cosby returns to court. Follow @MontcoCourtNews on Twitter for updates.
[The newspapers do not normally identify victims of sex
crimes without their consent but is using Constand’s name because she has
identified herself publicly.]
