Ask a lawyer. What happens when a case is delayed over a long period of time? It usually helps the defendant. Cops retire. District attorneys leave office. Witnesses forget things over time.
For comedian Bill Cosby, whose Montgomery County criminal charges and pending trial are drawing intense, sustained media attention, his attorneys are all but ensuring his case could take months or even years before a trial.
On Friday, Cosby’s defense team filed the first appeal in the case, following a two-day hearing on whether the comedian could even face the charges filed against him. Note: This was not even Cosby’s preliminary hearing. That comes later.
Are these delays good for Cosby? It’s already been 12 years since the he alleged sexual assault of Andrea Constand in his Cheltenham home. With Cosby being 78 years old and — as his attorneys have pointed out — not in the best of health, is the strategy just to delay until his death?
“I’ve heard that a lot, and that may be a fact of what happens, but I don’t see that as a strategy,” Philadelphia defense attorney Jeff Lindy, who represented Msgr. William Lynn in the Catholic church sex abuse scandal, said. “In my mind, how is that a victory? My client dies with a cloud over his head. I want my client to pass with a clear conscience.”
Cosby’s hired a team of high-powered attorneys that includes Philly defense lawyer Brian McMonagle, a longtime lawyer known for repping other lawyers if they get in trouble with the law. No stranger to a courtroom and representing famous clients, McMonagle is expected to aggressively argue the case in the courtroom. The comedian is also represented by Monique Pressley, who has been compared to Annalise Keating from the ABC show “How To Get Away With Murder” and is handling most of the national media fixated on this case.
Her argument, thus far, has gone like this: The criminal charges filed against Cosby in the eleventh hour of the statute of limitations can be chalked up to “politics” on the part of the guy who made the decision to charge him. (Despite dozens of women saying they were sexually assaulted by Cosby, the Montgomery County case is the only one in which criminal charges were filed as the statute of limitations had passed in many of the other cases.)
The indecent assault charge he faces stems from a January 2004 incident involving Constand, a former Temple University employee, and was filed by new Montgomery County District Attorney Kevin Steele. He campaigned against former DA Bruce Castor, who was calling the shots when Cosby was first investigated in the mid-aughts. Steele made Cosby a central campaign issue, vowing to re-open the case if he were to be elected. When he was, he filed charges against Cosby not long after taking office.
Now, Castor’s one of the central figures to a pre-trial issue that could hold up the criminal case against Cosby. At the beginning of February, Judge Steven O’Neill ruled the criminal charges against Cosby could stand, despite a bid by his attorneys to have the case thrown out because of an agreement between Castor and Cosby’s then-defense attorney in 2005.
Castor testified that as a “sovereign” of Pennsylvania, he made a binding agreement — that was never written down or documented, save for a signed press release — with Cosby that apparently assured he would never face criminal charges related to Constand’s case, so long as he didn’t plead the fifth in the civil case she had filed against him. According to Castor, that agreement was made with Cosby’s former attorney William M. Phillips, Jr., who has since died.
Constand’s attorneys testified such an agreement didn’t occur.
“He slammed her, slammed her in that press release,” lawyer Dolores Troiani said during the hearing. “She’s a victim in a sexual assault. I was the first woman to try a rape case in Chester County. I was asked if you could use a different word other than penis and had attorneys asking if (the victim) had an orgasm…. Thirty years later we had a district attorney in 2005 slamming a victim.”
In 2005, Cosby didn’t plead the fifth in that civil case. He testified, under sealed deposition, that he obtained Quaaludes for the purpose of giving them to women he wanted to have sex with. And those depositions were unsealed last year following a request by the Associated Press. They then became the basis of the criminal charges filed against Cosby.
Judge O’Neill didn’t bite, though. He ruled there wasn’t a basis for charges to be dismissed, and also ruled against a second defense motion that asked that Steele recuse himself from the Cosby prosecution because of the political implications they had argued against earlier.
So on Friday, Cosby’s defense team — in what’s considered a rare move for mid-trial — appealed the decision and asked to halt trial proceedings (including a scheduled March 8 preliminary hearing) until the issue surrounding this “agreement” made with Castor is settled.
Steele said in a statement released after the filing: “We will file a response, but in our review of the law, we find that they do not have a right to direct appeal at this stage. We continue to oppose any further delay in the case.” The court hasn’t ruled on the appeal.
Philadelphia defense attorney Richard Fuschino said “nothing about” the appeal filed Friday is purely a delaying tactic. This type of appeal, in the middle of a criminal case, are rarely taken on by the state Superior Court. Typically, defense teams are told they must wait until a trial plays out and ends before filing an appeal.
There is an exception though: If a decision made on a mid-case appeal by a higher court would mean the proceedings otherwise couldn’t go on, the appeal can be certified as an “interlocutory appeal” and the case can be halted until that one issue plays out. All Cosby’s team needs to do is convince the Superior Court that the issue involving Castor is so crucial to the case that it cannot move forward until it’s resolved.
“The thing that strikes me is just the importance of it, the overall importance of it, given how new of an issue it is,” Fuschino said. “It seems appropriate to appeal it now and, if they do appeal it, they may be waiving the ability to litigate it in the future.”
With that said, it’s rare for an interlocutory appeal to be granted. And, in this case, even if the depositions are thrown out, the new district attorney could still bring the criminal charges based on Constand’s testimony of what happened.
“If the defense wins and the deposition of Cosby is thrown out, Kevin Steele could say ‘well, sorry Bill, I’m the new DA, and I’m going to go on the say-so of the complainant,'” Lindy said. “There’s a hell of a lot of cases brought with a lot less evidence than that.”
Even if this issue involving Castor is settled and the case moves forward, more pre-trial legal battles linger. If, as expected, Steele attempts to bring in other women who said they were assaulted by Cosby in order to establish a pattern of behavior, Cosby’s attorneys will be able to file a motion and request a hearing to ask that those “past bad acts” not be introduced.
Prosecutors typically aren’t allowed to bring up past actions in a criminal case as it could color the jury’s view of the case at-hand. However, there are exceptions, and they can be used to show motive, intent or a pattern that would suggest a “signature crime.” In Cosby’s case, many of the dozens of women who came forward reported a similar story as Constand did.
Making sure those women aren’t allowed to testify against Cosby could be one of the defense team’s most important fights.
“It’s fundamentally unfair to have to fight shadows,” Philadelphia defense attorney William J. Brennan said last month. “The defendant has a right to confront his accuser. To have to fight shadows of alleged uncharged misconduct is a distraction.”
Billy Penn reporter Mark Dent contributed reporting.