Friday, February 24, 2017

Cosby Ruling: Whose Victory? It's Anyone's Guess

Legal insiders had been anxiously waiting for “The Ruling” for weeks and when it finally came on Friday in the Bill Cosby case those working and visiting at the courthouse were talking about it.

Montgomery County Judge Steven T. O’Neill ruled that only one of 13 other women who accuse the 79-year-old entertainer of sexual misconduct can testify against him at his upcoming trial on charges he allegedly sexually assaulted one woman at his Cheltenham mansion in 2004.

In a one-page order, O’Neill ruled prosecutors can present the testimony of “prior alleged victim six” at Cosby’s upcoming trial on charges he allegedly sexually assaulted Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his home sometime between mid-January and mid-February 2004.

Bill Cosby/Submitted Mugshot

Cosby claims any contact with Constand was consensual.

District Attorney Kevin R. Steele had asked the judge to allow a total of 13 other alleged Cosby accusers to testify at the trial, but O’Neill ruled 12 of the women cannot testify.
Montco DA Kevin R. Steele/Submitted Photo

Defense lawyers Brian J. McMonagle and Angela C. Agrusa had fought to keep out the testimony of all 13 women.

Leading up to Friday’s ruling local legal experts I talked to agreed it was a key pretrial battle that could determine the path that the lone criminal prosecution pending against Cosby takes.

So, was it a legal victory for prosecutors or defense lawyers? Both sides are probably claiming victory.

But it’s anyone’s guess, really.

Some believed the entire Cosby case boiled down to that one issue and the more testimony from alleged other victims that came in, the more helpful it would be to the prosecution.

Steele had argued he needed the testimony of the 13 other alleged accusers to prove Constand’s claim that she did not consent to sexual contact with Cosby and to counter inevitable defense attacks on Constand’s credibility at trial. Steele said the testimony was needed to prove Cosby engaged in “a common scheme.”

Some experts believe having testimony from even just one other alleged accuser is a big benefit for prosecutors and is “incredibly damaging” for a defendant.

“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),” one lawyer told me recently.

Now that prosecutors have convinced the judge to allow one other alleged accuser to testify at trial, have they succeeded in bolstering their case against Cosby?

But other legal insiders told me the entire goal of the defense from Day One was “to keep as much of that, if not all of it, out as is certainly possible.” Certainly, the ruling will force prosecutors to have to rely more on Constand’s words and the credibility of her testimony in their quest for a conviction.

Brian J. McMonagle/Photo by Carl Hessler Jr.
McMonagle and Agrusa argued that testimony of 13 other alleged victims of Cosby’s uncharged sexual misconduct would be unfairly prejudicial to Cosby and should not be permitted given that many of the claims were “ancient accusations” from the 1960s, 1970s, 1980s and 1990s.

Now that McMonagle and Agrusa have convinced the judge that the testimony of 12 other alleged accusers should be kept out of the trial – essentially preventing an avalanche of new alleged evidence from coming in - have they succeeded in putting the defense case in a better posture?

Time will tell. Cosby’s trial begins June 5.

I’m sure I’ll hear many more opinions on the subject from legal eagles in the days ahead.

Stay tuned.

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