NORRISTOWN >> Prosecutors and defense lawyers alike face multiple legal hurdles as Bill Cosby’s alleged sex assault case winds its way through Montgomery County Court, according to some well-known, local lawyers.
As he seeks to convict the 78-year-old entertainment icon of allegedly drugging and sexually assaulting a woman in 2004, District Attorney Kevin R. Steele will have to overcome defense implications that Cosby’s arrest was politically motivated; fight to use as evidence Cosby’s alleged damaging testimony in a 2005 civil deposition; fight to call other alleged accusers to the witness box; and overcome questions as to why it took so long to charge Cosby, according to courthouse legal observers.
On the other hand, Cosby’s high-powered defense team, Philadelphia lawyer Brian J. McMonagle and three other lawyers from Washington, D.C. and Los Angeles, initially will attempt to get the charges tossed this week. But if the case gets to trial they will have to fight to keep other alleged Cosby accusers out of the trial and overcome extensive pretrial publicity about the accusations.
“There are a few hurdles. The first hurdle is that it’s a case that’s old at this point in time,” said Norristown criminal defense lawyer Thomas C. Egan III, explaining jurors naturally will question why it took nearly 12 years to bring charges against Cosby.
“I think the fact that the district attorney’s office did not believe there was enough evidence to bring charges years ago is a fact they’re going to have to contend with,” echoed criminal defense lawyer Martin P. Mullaney, of Skippack.
Egan and Mullaney, each a former prosecutor turned defense lawyer, have handled their fair share of high-profile local cases but are not connected to the Cosby case.
The Cosby investigation initially was undertaken by former District Attorney Bruce L. Castor Jr. In February 2005, Castor determined there was insufficient evidence to prosecute Cosby for his alleged contact with former Temple University athletic department employee Andrea Constand at the Cosby home in Cheltenham. Cosby claimed the contact was consensual.
But Steele reopened the investigation last July after Cosby’s deposition connected to a 2005 civil suit Constand filed against him was unsealed by a judge. In that 2005 deposition, Cosby gave damaging testimony, allegedly admitting he obtained Quaaludes to give to women with whom he wanted to have sex.
COSBY DEPOSITION“If there was damaging evidence presented by him in the deposition testimony in the civil cases you would try your best to keep that out,” speculated Egan, who represented Caleb Fairley, the Upper Merion man convicted of the 1995 murders of a Limerick mother and her toddler daughter and who was sentenced to two life prison terms.
In announcing the charges Dec. 30, right before the 12-year statute of limitations to file charges expired, Steele said he reopened the Cosby case after reviewing the 2004 investigation, re-interviewing witnesses, examining evidence in the civil case and information from other alleged victims.
During Cosby’s September 2005 deposition, he acknowledged that he had, in the past, obtained seven prescriptions in his name for Quaaludes that he never took, nor ever intended to take, according to court papers. Detectives, in court papers, alleged Cosby “testified that on one prior occasion, he gave a woman Quaaludes in anticipation of having sex with her.”
Because Cosby obtained prescriptions for depressants he didn’t intend to personally ingest, prosecutors alleged it’s likely he gave the drugs to women he planned to have sex with.
“It doesn’t mean it’s going to be admissible. One of the glaring problems is whether or not the statements he made at a deposition are going to be admissible in court against him for this particular alleged victim,” said Cary B. McClain, a Lower Merion defense lawyer unconnected to the Cosby case.
“The deposition testimony is essentially what moved the scales for the district attorney’s office toward prosecution. So if those statements don’t come in, of course it’s going to make their job a lot harder,” speculated McClain.
In court papers, Cosby’s lawyers maintain Cosby agreed to give testimony in the civil case only after Castor entered into a “non-prosecution” agreement with him and they are expected to fight to keep the deposition testimony out of any trial.
PRETRIAL PUBLICITYPretrial publicity is expected to be a hurdle for all the lawyers if Cosby’s case ever gets to the point of jury selection. Mullaney predicted picking a jury is going to be “extremely difficult.”
“I just think there’s going to be great difficulty in finding a set of fair and impartial jurors. Where are you going to go to find people that have never heard about Bill Cosby and the Cosby accusations?” Mullaney pondered. “With all the media attention you’re going to have to find somebody who lives under a rock or in a cave who wouldn’t have heard about this case.”
Citizens summoned for jury duty are going to have opinions, good or bad, or preconceived ideas about Cosby, presenting an obstacle to finding jurors who will be able to say they can put aside those opinions or ideas, Mullaney and Egan agreed.
“Where it is probably more of a detriment to the defense is if anybody is following the story in the press, any perspective juror is going to be aware of all the alleged complainant’s allegations against him…,” said Egan, adding it’s going to take extensive questioning of potential jurors to make sure they are “able to put any preconceived ideas out of their mind and be fair for this individual case.”
In the Fairley case, Egan, raising the issue of extensive pretrial publicity, succeeded in convincing a judge to select a jury from Dauphin County. But moving Cosby’s trial or selecting a jury from another area isn’t likely since the allegations have garnered nationwide and even worldwide attention.
“In terms of other complications with publicity, if I was handling the case, my first instinct would be to ask for a gag order that would restrain either party from being able to have the lawyers talk about the case at any time prior to the trial,” Egan said. “I did it in Fairley as soon as I was court appointed and I’d rather not litigate my case in the press.”
Most courthouses in the U.S., Egan said, haven’t been home to cases that are as high-profile as Cosby’s, with the exception of cases involving high-powered politicians who have a national or statewide reputation and who fell afoul of the law. The Cosby case appears to have even overshadowed that of embattled state Attorney General Kathleen Kane who is awaiting trial in Montgomery County for alleged perjury.
“But even in this instance, it seems like people are more interested in entertainment than politics in our society and this is probably higher profile than any of the political cases,” Egan said.
ALLEGED POLITICAL MOTIVATIONLast week, defense lawyers filed papers asking for Steele’s disqualification from the Cosby case, contending the newly-elected Steele repeatedly violated ethical rules by injecting the Cosby case into his fall election bid “that served no purpose other than to advance Mr. Steele’s political ambitions by inflaming the public against Mr. Cosby.” McMonagle claimed Steele’s television campaign ads attacked his opponent, Castor, for failing to prosecute Cosby in 2005.
“So, the question is going to be whether or not it’s relevant for a jury to hear allegations that this may have been politically motivated by the particular prosecutor,” McClain said.
“If something’s politically motivated or an officer that’s going to testify has some reason for bias, then their credibility may be at issue and then it may be relevant. But for a prosecutor to have a potential political bias toward prosecuting a case, it’s going to be tough for the defense to get that to be admissible before a jury,” McClain added.
McClain said the defense allegation that the Cosby prosecution is politically motivated might be an issue that is argued during the pretrial phase or if there are post-trial hearings.
Castor has claimed there wasn’t enough “reliable and admissible” evidence to prosecute Cosby in 2005.
Castor, during an interview a day after he lost the election to Steele last November, and before Cosby was charged by Steele on Dec. 30, theorized any prosecution of Cosby might be compromised because Steele made Castor’s 2005 decision a campaign issue.
“Should they actually go ahead and arrest Cosby, I’d be very surprised if there weren’t a very contentious series of motions to disqualify the district attorney’s office by virtue of the fact that the new boss (Steele) has already told the public, in his opinion, that Cosby is guilty,” Castor said during a candid interview one day after his Nov. 3 election loss. “I think that that will cause a monumental problem if in fact the county decides to go ahead against Cosby.”
Steele has said McMonagle’s claims of unethical conduct by prosecutors are meritless and that the “premise that the district attorney has a personal interest in (Cosby’s) conviction as a result of campaign material is unsupported by Pennsylvania case law and fails even under extra-jurisdictional authority.”
ALLEGED OTHER BAD ACTSThe 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 lawsuits filed by women who claim he violated them too.
It’s expected that prosecutors trying to prove Cosby sexually assaulted Constand will attempt to present as trial evidence testimony from some of the other alleged victims to imply that the actor and comedian had a common scheme or plan.
“Most importantly, the biggest factor in the whole case is that if they cannot get into evidence the other women who have brought allegations since this incident, then I think they’re in a lot of trouble,” said Mullaney, referring to prosecutors. “I think the whole key to the prosecution’s case is the admissibility of evidence involving alleged victims who came forward after (Constand’s allegations).”
Egan agrees that finding corroborating evidence will be crucial for prosecutors and it sets the stage for contentious pretrial battles where a judge will have to determine if such evidence is relevant.
“I imagine the motion practice is going to be very important in this case because if they can introduce other bad acts evidence against him, then it’s going to make it much more difficult for the defense,” Egan speculated. “If they can’t introduce that evidence, then it’s the prosecution case rising and falling on the word of one alleged victim.
“If they’re able to get evidence in of alleged prior sexual assaults or subsequent sexual assaults that are somewhat similar to what this complainant alleges occurred, then it’s going to go a long way toward obtaining a conviction,” Egan added.
Defense lawyers will have to win the pretrial battles to keep any such alleged evidence out. But the defense team has another hurdle.
“But you still have the bias and motives issue - why would she come forward and put herself through the turmoil of such a high-profile litigation if she wasn’t wronged in some way by Mr. Cosby. That’s always something that’s difficult (for the defense,)” Egan said.