Judge rules Bill Cosby sexual assault case in Pennsylvania can proceed

Feb. 3, 2016 4:43 PM PT

Reporting from NORRISTOWN, PA. — A bid by Bill Cosby’s lawyers to have the sexual assault charges against the entertainer dismissed was rejected by a judge here Wednesday evening, clearing the way for a potential trial.

The judge, Steven O’Neill, said that he found “no basis to grant the relief request” by the attorneys. They had mounted a case over the last two days arguing that former Montgomery County Dist. Atty. Bruce Castor had made a non-prosecution agreement with the comedian’s lawyer more than a decade ago.

Cosby has been charged with three felony counts of aggravated indecent assault stemming from a 2004 interaction involving drugs and alcohol with former Temple University basketball staffer Andrea Constand.

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The entertainer sat stoically as the judge read the decision, then talked quietly to an aide while lawyers huddled behind him. A preliminary hearing has been set for March 8, at which time another judge will determine if there is enough evidence for the case to move to trial. Constand is likely to testify at that session.

O’Neill did not elaborate on how he came to Wednesday’s ruling. But throughout the two days he frequently expressed skepticism about the defense’s claim of an oral agreement that had never been formalized and was known only by Castor and the late Cosby lawyer Walter Phillips.

“There’s no other witness to the promise,” he told the defense. “The rabbit is in the hat and you want me at this point to assume, ‘Hey, the promise was made, judge, accept that.’”

He also questioned Cosby’s lawyers over whether the news release on which the defense has based its case could serve that purpose; typically, those agreements are entered more officially on the record.

The courtroom battle at times became as much a matter of politics as of legal details. The case against Cosby is being brought by Dist. Atty. Kevin Steele, a rival of Castor’s who had defeated him for the post in November after taking an aggressive stance on Cosby prosecution in campaign ads. Castor, meanwhile, testified for the defense.

Just after the ruling, the defense argued that Steele should be removed in favor of another prosecutor because he had ulterior motives. “Mr. Cosby was a political football in the fall of 2015, and that’s what led to this decision” to prosecute, said Christopher Tayback, one of Cosby’s lawyers.

But O’Neill ruled against the defense again and rejected that bid, setting up a situation in which the man who ran for office on a hawkish Cosby stance will square off with him in court.

The prosecution also made politics an issue in the hearing, calling Castor’s motives into question.

osby lawyers had sought to depict the former district attorney as having made the agreement because of concern for Constand, the alleged victim. The former district attorney testified for seven hours Tuesday, saying he made the promise to help her in a civil suit. By removing the specter of criminal prosecution, he said, it would compel Cosby to be deposed without being able to invoke the 5th Amendment.

But prosecutors argued that Castor was not concerned about the alleged victim. They called to the stand Constand’s lawyers, who said they had never heard about any such agreement or the rationale for it, and also cast doubt on the former district attorney’s motives.

“I don’t believe that he would act in a manner that would hurt him politically,” testified Dolores Troiani, Constand’s lawyer. “I don’t believe he would ever arrest Cosby because it would hurt him with the electorate.”

Her and others’ testimony was an elaboration of what had been happening since Cosby first stepped into the court on Tuesday morning: though technically a hearing about the narrower matter of a past non-prosecution agreement, it has often become a window into the events of Cosby and Constand as experienced by their lawyers.

Troiani, for instance, offered a window into Cosby’s actions at the deposition. “There was a lot of yelling and screaming and trying to divert our attention,” she said of the four-day session in 2005. “The first day he tried charming and when that didn’t work…he became more and more contentious.”

Earlier, attorneys spent a number of hours arguing about an unlikely subject area: the importance of the written word.

The defense called John Schmitt, Cosby’s longtime personal lawyer, to establish an “irrevocable” pledge, as Schmitt phrased it.

Schmitt never met with Castor, but he testified that he perceived both a signed 2005 press release from the ex-D.A. and assurances by the late Cosby criminal attorney Walter Phillips (who did talk to Castor) as confirmation of this agreement.

Steele, though, pressed Schmitt during a cross-examination on the lack of concrete evidence of the pledge. “You never obtained a written agreement from the Commonwealth?” he said. “Did you memorialize [it] in any other way?

Cosby did not speak in court, though his presence was strongly felt, and eyes would often turn to him when his behavior was described from the stand. After the ruling, he was helped out of the room by several aides, the result of a vision problem that was cited several times during testimony.

The prospect of a trial for the once beloved comedian will test the historic goodwill for a celebrity with a growing anger about Cosby’s alleged activities with women, more than 50 of whom have stepped forward to say he had initiated unwanted sexual contact with them, often after providing them with drugs or alcohol.

Victim rights groups cheered the ruling Wednesday. Karen Polesir, the head of the Philadelphia chapter of the sexual assault advocacy organization SNAP, sent out a statement that read in part, “Wake up, rich rapists! Your days of sweetheart deals are diminishing,” and said that “we hope that this ruling will make other prosecutors pause before giving ‘get out of jail free’ cards to accused rapists, whatever their intentions or rationale might be.”

PAVE, the victims’ group that has called for a revocation of Cosby’s Presidential Medal of Freedom, applauded the decision too. “This was the first time Bill Cosby has faced criminal charges.,” said executive director Angela Rose. “It is a small yet substantial victory for his accusers. Celebrity status does not excuse you from following the law.”

For its part, the prosecution has intimated that class and privilege will be an issue in any upcoming trial as well.

As he made his argument Wednesday, Steele cited Cosby’s status. “A secret agreement that permits a wealthy defendant to buy his way out of a criminal defense isn’t right,” he said.

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