There was one person noticeably missing from Montgomery County Court in May when Bill Cosby appeared for his preliminary hearing: Andrea Constand.
She’s the former Temple employee who accused Cosby of sexually assaulting her at his Cheltenham home in 2004. She’s also the only one of his 60 public accusers to successfully file criminal charges against the disgraced comedian, just before the statute of limitations had ran up last December.
But attorneys couldn’t question Constand at a May preliminary hearing in Norristown. Instead, a police official read aloud the statements she gave to local police after the alleged incident took place. Magisterial District Justice Elizabeth McHugh told prosecutors it was “risky” not to produce Constand for questioning, but ultimately ruled to move the charges against the 78-year-old comedian to trial.
Cosby’s high-powered team of defense attorneys felt differently. So today, they’ll stand up in open court to argue that his case was irreparably damaged because they were not able to question Constand during the preliminary hearing (though prosecutors said Constand has agreed to testify at trial). Then, the judge will rule on whether or not to overturn the previous decision.
“No one… should ever be brought to an American court room and be held for court under these circumstances,” Cosby’s defense attorney Brian McMonagle said in a closing argument during the preliminary hearing. “[Prosecutors] chose not to bring her here.”
At the very least, Cosby’s team will probably ask for some sort of delay in the trial — a tactic they’ve used often and well since charges were filed — until the state Supreme Court rules on a case it’s hearing on this exact issue.
Current law in Pennsylvania allows hearsay testimony at preliminary hearings. That rule was put in place in 2011 by the Supreme Court itself, as prosecutors argue that preliminary hearings are used only to rule on whether enough evidence exists to present to a jury — not decide guilt or innocence. Therefore the burden of proof is much lower at these first appearances for defendants, and the credibility of a witness isn’t at issue. Advocates for victims of sexual and domestic violence have told the court attacking a victim’s credibility when it’s not necessary could be damaging prior to trial.
Defense attorneys pretty roundly disagree. Public defenders argued in 2011 the rule would send cases to the Court of Common Pleas that would ultimately fall apart, putting more in prison awaiting trial. Other criminal defense attorneys told the Supreme Court not being able to question an accuser in open court when a defendant’s case is on the line is a violation of a defendant’s right to due process.
The case in front of the state Supreme Court was filed on behalf of David Ricker, a Harrisburg man who faced charges of attempted murder after he exchanged gunfire with a state trooper in June 2014. Ricker was shot, the state trooper was cleared and the officer did not appear to testify at Ricker’s preliminary hearing. Instead, the officer’s testimony was read into the record, similar to how Constand’s was in the case against Cosby.
At the end of July, the state Supreme Court will hear evidence on Ricker’s case, and the court could theoretically reverse its own decision on allowing hearsay evidence at preliminary hearings. But in order to have an impact on the Cosby case, the court would have to make that ruling retroactive.
Cosby faces charges of aggravated indecent assault in connection with the 2004 incident in which Constand said Cosby drugged and sexually assaulted her. She reported the incident to officials a year later, but charges weren’t filed until 2015 after the case was reopened by District Attorney Kevin Steele after civil depositions given by Cosby were released.
Those depositions come from a case Constand filed in 2006 in which Cosby admitted he gave drugs to women whom he wanted to have sex with. The depositions, along with Constand’s statements to police, were among the evidence presented by Steele’s office when charges were filed against Cosby.
But this case has dragged on. For most defendants, the preliminary hearing is held shortly after charges are filed to determine whether there’s enough evidence to move ahead. Many defendants waive their preliminary hearing entirely. It’s now more than seven months since the charges were filed, and attorneys are still arguing over the preliminary hearing stage.
We’ll be covering the hearing from Norristown, which begins at 1 p.m. today. Follow us on Twitter for updates.