Montco judge says Cosby case can proceed

A judge Thursday shot down Bill Cosby's latest attempt to have his sexual-assault case dismissed, ruling the case could move forward without pretrial testimony from accuser Andrea Constand.

In explaining his ruling from the bench, Montgomery County Court Judge Steven T. O'Neill described "as perfectly proper" the decision by prosecutors not to call Constand as a witness at the May hearing in which the 78-year-old entertainer was ordered to stand trial. Instead, they relied on the statement Constand gave to police when she first reported her alleged assault 11 years ago.

"The commonwealth does not have to present live evidence at preliminary hearings," the judge said. "This case shall proceed to trial."

Cosby's attorneys had urged O'Neill to throw out the case, saying Cosby's rights had been irrevocably violated by losing his opportunity to confront Constand in court before his trial on charges of indecent aggravated assault.

"Today, someone who has given so much to so many had his constitutional rights trampled upon again," his attorney, Brian J. McMonagle, said after the hearing. "Once again, the prosecution in this case had the opportunity and the obligation to place this witness under oath so we could conduct a search for the truth. And, once again, they failed to do so."

The argument was the latest effort from Cosby's legal team to fight off the sole criminal case to emerge from allegations from dozens of women who say Cosby drugged and sexually assaulted them.

O'Neill issued his ruling after a three-hour hearing in Norristown, where Cosby - dressed in brown slacks and a corduroy jacket with a thin cane clutched in his hands - at times looked distracted as the arguments of each side quickly became mired in legal arcana and close readings of codes of criminal procedure.

Yet, despite the at-times arid arguments being made in court, the hearing offered glimpses of battles to come.

Before the court gallery had even cleared after the judge's ruling, a Cosby spokesman e-mailed a statement signaling an imminent appeal.

At his own post-hearing news conference, District Attorney Kevin R. Steele shot back with a not-so-subtle jab at the strategy of Cosby's defense team to challenge each pretrial ruling.

"They're saying they want to confront the witness? Well, let's go to trial and confront the witness," he said. "If I was able to, I'd pick a jury tomorrow on this case."

The two sides also clashed over Steele's efforts to introduce excerpts from a deposition that Cosby gave in 2005 and 2006 in a civil suit he later settled with Constand for an undisclosed sum. Cosby's attorneys maintained that the transcript, which was obtained by several media outlets last year, was under court seal at the time and should not be used against their client at trial.

But O'Neill deferred that debate to another day, focusing instead on the question of whether current state law required prosecutors to put Constand on the witness stand before trial.

Prosecutors typically seek to limit testimony from accusers at preliminary hearings because if they say anything under oath that differs from testimony they offer at trial, defense attorneys can use it to attack their credibility. For that reason, defense lawyers value the opportunity to probe accusers' stories before a case lands in front of a jury because it can expose inconsistencies.

At the May hearing, District Judge Elizabeth McHugh acknowledged Constand's absence was a "risky" move for prosecutors, but still approved the case for trial based on the excerpts of her police statement.

In them, Constand alleged that Cosby drugged and assaulted her in 2004 during a visit to his Cheltenham mansion.

Cosby has repeatedly denied Constand's allegations. While he described a sexual encounter with her in his own statement to police - which was also read into the record at the hearing - he described it as consensual.

Steele and his deputy, Robert Fallin, maintained Thursday that the right to confront witnesses in court does not apply to pretrial hearings, where prosecutors need only show that they had enough evidence to present a plausible case at trial. What's more, they accused Cosby's legal team of using the hearing to try to discredit Constand.

"It's our position that we are not going to re-traumatize victims at preliminary hearings," Steele said. "They want to re-victimize a person. They want to intimidate a person from going forward or cooperating."

Cosby attorney Christopher Tayback argued that Cosby had a constitutional right to confront Constand in court before his trial and that prosecutors had kept her off the stand because her story raises more questions than answers.

"We should just be relying on what someone said someone said," Tayback said, referring to the detectives who read Constand's statement into the record during the earlier hearing. "We have to have some meaningful opportunity to ask questions."

But even in ruling for the prosecution Thursday, O'Neill acknowledged that Pennsylvania law on the matter remained unsettled.

Earlier this year, the Pennsylvania Supreme Court agreed to review a Superior Court ruling in a separate case that approved the use of police statements instead of direct testimony from accusers as prosecutors' sole evidence at preliminary hearings.

Unless the state high court says otherwise, O'Neill said Thursday, that ruling remains the guiding authority in the state.

"I am not persuaded," he said, "that it is the role of this court at this stage to go in complete contravention of the state's Superior Court."

A trial date has not been set.

jroebuck@phillynews.com

215-854-2608 @jeremyrroebuck