Bill Cosby returns to court Tuesday in Pennsylvania for what is expected to be a two-day hearing in the accused comedian's latest attempt to get sexual assault charges against him dismissed.
Montgomery County Judge Steven O'Neill will hear arguments in the Philadelphia suburb of Norristown on three key issues in the case, including whether a damaging deposition by Cosby — in which he acknowledges he obtained drugs to give to women he sought for sex — can be used at trial.
More controversially, O'Neill also will decide whether the prosecution can bring up Cosby's alleged "prior bad acts" – the accounts of 13 other women who accuse Cosby of similar assaults.
Cosby, who is set to go to trial in June 2017, faces three counts of aggravated indecent sexual assault stemming from a 2004 encounter with Temple University employee Andrea Constand, who looked to Cosby as a mentor. Constand, a 43-year-old Canadian now living in Toronto, says Cosby drugged her and assaulted her at his Montgomery County home, an account similar to that of five dozen other women who have come forward to accuse Cosby since the fall of 2014.
The prosecution aims to show that Cosby, 79, exhibited a pattern of sexual assault dating back to the 1960s and in multiple states. Cosby has not been charged in any of these other accusations, due to statutes of limitation in other states, but prosecutors say the 13 other accusers' testimony should be admitted in his trial.
“During the course of this case, the Commonwealth investigated nearly 50 women allegedly victimized by defendant,” the court papers say. “What became clear was that defendant has engaged, over the course of his lifetime, in a pattern of serial sexual abuse.”
Not so, say Cosby's defense team, adding that prosecutors are relying on "tainted, unreliable memories of women, now in their senior years." Cosby will seek competency hearings on any accusers allowed to testify, arguing that a defense memory expert who reviewed their statements found the accusers' memories have been marred by time, media coverage of the case and their friendship with one another.
Cosby's lead defense attorney, Brian McMonagle, has made it clear he will fight against the admission of these accounts, saying at Cosby's last hearing in September that much of the actor's reputation has been irreparably damaged through these charges. Cosby's civil rights work has also been dismissed, McMonagle said outside the courthouse in September.
Cosby and his lawyers have tried before to get the charges dismissed on various grounds, and have failed each time. At his most recent hearing, they tried to argue that Constand should have been compelled to testify in person at the hearing, so that Cosby could confront his accuser in person. But the judge ruled against him, citing Pennsylvania law that allows use of hearsay testimony, such as a police report of Constand's accusations, at a preliminary hearing.
In a recent court filing seeking dismissal of the charges, Cosby's lawyers said it's become clear that this case is not about whether Cosby sexually assaulted Constand. Cosby has denied all of the accusations against him, and his lawyers reiterate in court documents that he did not assault Constand.
"In fact, the Commonwealth has chosen to turn this case into a platform for Mr. Cosby's other accusers to air their even staler, long-ago, time-barred claims that were never reported to authorities," court papers say. "The Commonwealth's choices about how to prosecute this case, combined with its lengthy delay in bringing charges, impose an impossible burden on Mr. Cosby."
The defense lawyers say Cosby is blind and will have trouble defending himself in court given that he can't see his accusers.
District Attorney Kevin Steele said he's prepared to go to trial as soon as the court will hear the case, which he reopened after promising to pursue Cosby during his election campaign last November.
The prosecution is seeking to use Cosby's own words in a damaging deposition he gave for a civil lawsuit filed by Constand in 2005, which was later settled. (The deposition was included in "new evidence" Steele cited in charging Cosby, after a previous district attorney had declined to file charges in 2005. Cosby argues the deposition should be tossed because it was sealed and then wrongly released by a judge.)
Steele also wants to use the transcript of a secretly recorded phone call between Cosby and his accuser's mother, Gianna Constand, in 2005.
Stuart Slotnick, a New York criminal defense attorney who's been following the Cosby case, predicts Cosby will not succeed in getting the case dismissed before trial; the only question — and the point of the hearing – is what evidence will be admitted.
Slotnick believes the judge will allow at least parts of the deposition to be admitted, and it's a "toss-up" whether the secret phone call will be allowed (Constand's mother was in Canada, where secretly recording a phone call is not illegal).
But Slotnick says allowing other accusers to testify is much more risky for judges, who generally don't like to be overturned on appeal for making mistakes at trial, such as allowing in testimony that is more prejudicial than probative.
"The prosecution parading 13 other complainants to say Bill Cosby sexually assaulted Andrea Constand because he did it to 13 other women — that should be precluded. End of sentence," Slotnick says. "It is so outrageously prejudicial to Cosby to have to try 14 trials all in one, especially in one where the prosecution will have a significant problem of meeting the burden of proof beyond a reasonable doubt because (Constand) has tremendous credibility problems. It's a not-guilty verdict waiting to happen.
The hearing is expected to span Tuesday and Wednesday.