Cosby Loses Bid to Confront Assault Accuser

     NORRISTOWN, Pa. (CN) — A friend guided Bill Cosby into the courtroom Thursday afternoon where a judge refused to block his trial on an indecent-assault charge so that the defense team can interrogate Cosby’s accuser.
     Cosby, 78, has been battling glaucoma for years, and arrived at the Court of Common Pleas for his 1 p.m. hearing wearing a tan suit and carrying a cane.
     Though dozens women have claimed that the comedian drugged and assaulted them — in encounters dating back to the 1970s — Cosby’s accuser in this case, Andrea Constand, is the only alleged victim to hurdle the statute of limitations.
     She says Cosby drugged and assaulted her at his Cheltenham home one night in January 2004.
     Cosby’s attorneys contend, however, that they should have been given a shot at the May 24 preliminary hearing to challenge Constand’s credibility.
     “They can use hearsay, but what are the limits to the extent that hearsay can be used?” defense attorney David Mischak asked the court this afternoon. “The commonwealth cannot use hearsay solely to establish a prima facia case.”
     District Attorney Kevin Steele countered that there will be plenty of time for questioning when the case goes to trial.
     “We do not want to retraumatize the victims,” he said.
     Though voicing sympathy for Cosby’s argument, Judge Steven O’Neill said the law is not on his sinde.
     “Counsel showed excellent adequacy, but this court has to make certain rules based on what’s before the court,” O’Neill ruled. “Following the preliminary hearing in May, the commonwealth did establish a prima facie case.”
     Rule 542e says “hearsay may establish the rules of any offense … witness are not required at the preliminary hearing,” the court noted.
     After considering the petition, the reply brief, precedent and this afternoon’s arguments, O’Neill held that “542e and the commonwealth’s reliance is perfectly proper and is not unconstitutional.”
     The district court is set to schedule Cosby’s trial date at a conference on July 20. The trial is likely to start in late September or October.
     “Let’s get there,” Steele said. “They want to confront the witness, they get to do that at trial.”
     Cosby’s court dealings with Constand have stretched for over a decade.
     Though DA Steele’s predecessor declined to bring charges on the woman’s case back in 2005, Constand did file and settle a civil complaint against Cosby later that year.
     The criminal case came back to life after a federal judge lifted the seal on some of Cosby’s 2005 civil deposition testimony.
     Cosby is quoted in the damning transcript as admitting to having bought prescriptions for Quaaludes, giving the drugs to at least one young woman with whom he wanted to have sex.
     Cosby maintains that he never would have submitted to the 2005 deposition if he knew it could be used against him in criminal proceedings.
     At today’s hearing, meanwhile, Cosby’s lead attorney Brian McMonagle focused on statements Cosby and Constand gave to police back in 2005 about the encounter.
     “There are contradictions of Ms. Constand’s claims, for example where she says, ‘I told him I can’t talk,'” McMonagle said. “That itself is a contradiction.”
     McMonagle implied that Constand was a consenting party.
     “Cosby offered her a Benadryl and offered her wine, but she voluntarily ingested it,” he attorney said.
     DA Steele scoffed that Cosby can show consent.
     “The defendant admitted he gave her drugs and digitally penetrated her,” Steele said, in reference to the comedian’s 2005 statement to police. “He was pushing the alcohol and pushing her to take the pills. She was not in a state to consent to any of this.”
     Steele read aloud parts of Cosby’s 2005 statement in which he admits that he put his fingers inside Constand.
     “She makes a sound which I felt was an orgasm,” Cosby said, according to the statement. “She was wet. She was wet when I went in.”
     Earlier in the hearing, Judge O’Neill frequently interrupted both parties to focus on precedent.
     “Why not?” O’Neill asked. “Why this case? What is the application? I want to make sure this case is not singled out.”
     Cosby’s attorneys argued that “we shouldn’t rely on what someone said someone else said.”
     The defense heavily cited precedent from Commonwealth v. Ricker and noted that, that case “purposefully left open due process.”
     Meanwhile, the District Attorney’s Office argued that “the credibility of the witness or the weight of the evidence is not an issue at the preliminary stages.”
     “That would interfere with the right to a jury trial,” Steele said.
     The commonwealth disputes that Cosby suffered any Sixth Amendment or due-process violation, as alleged in Cosby’s petition for habeas corpus.
     The commonwealth’s response brief called it premature to scrutinize the witness at this stage.
     “The purpose of a preliminary hearing is simple: to determine whether there is probable cause that a crime was committed and the defendant could be connected with it,” the filing states. “The evidence must be viewed in the light most favorable to the commonwealth. Importantly, it is not a forum for attacking the credibility of a witness.”
     This is why “the law specifically permits hearsay testimony” at such hearings, he said.
     Cosby is seeking relief not normally afforded to defendants, Steele argued.
     “Defendant’s current attempts to invent new rights that would have compelled the commonwealth to present the victim at the preliminary hearing — precisely so that he could have prematurely attacked her credibility — are as transparent as they are contrary to law,” his response brief states.

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