Bill Cosby. (Credit: Randy Miramontez/Shutterstock.com)
For Americans tuning in to the trial, the criminal case against Bill Cosby offered an irresistible contrast: “America’s dad” vs. alleged sexual predator.
For the Pittsburgh-area jurors who heard his trial, the contrast may have played a part in their inability to reach a verdict, sparking a mistrial on June 17. But the case was also unusual from a lawyer’s perspective—peppered with legal oddities and raising unprecedented questions of law.
Cosby was charged in December 2015 with three counts of aggravated indecent assault, based on Andrea Constand’s allegations that he drugged and sexually assaulted her in 2004 at his Cheltenham home.
The allegations were no surprise by the time Montgomery County District Attorney Kevin Steele announced charges. For more than a year before that, women had been coming forward to say they were also victims of Cosby. And Constand’s claims had been made public before, when prosecutors started an investigation and abruptly stopped it in 2005.
But the legal strategies and decisions that shaped Cosby’s fate were anything but routine.
The ‘Public Moralist’ Argument
Prosecutors have said they reopened their investigation in 2015 in part because of new evidence—namely, portions of a deposition Cosby gave about a decade before. In the deposition, Cosby testified about his interactions with Constand and described sexual encounters with other women. He also admitted that he had obtained Quaaludes to give to women with whom he wanted to have sex.
That evidence only became public through a federal judge’s ruling that Cosby, as a “public moralist,” is entitled to less privacy than others.
“Defendant has donned the mantle of public moralist and mounted the proverbial electronic or print soap box to volunteer his views on, among other things, child-rearing, family life, education and crime,” U.S. District Judge Eduardo Robreno of the Eastern District of Pennsylvania said. “To that extent that defendant has freely entered the public square … he has voluntarily narrowed the zone of privacy that he is entitled to claim.”
Cosby appealed the unsealing, but Judge Thomas Ambro of the U.S. Court of Appeals for the Third Circuit concluded that the information had become public knowledge through media reporting, so the matter was moot.
However, in a footnote, Ambro said the Third Circuit panel had “serious reservations about the district court’s ‘public moralist’ rationale,” calling it “vague and undefined.”
In her testimony, Constand had to recall events that took place more than 13 years ago. She went to the police in 2005, about a year after the alleged assault, but the case didn’t make its way to trial until much later.
Pennsylvania has a 12-year statute of limitations on sexual assault cases, and it was just days from running out when Steele’s office announced charges a year-and-a-half ago. Cosby’s lawyers have even raised the possibility that the date of the alleged assault is unclear, and could have been more than 12 years before the indictment. But no statements or testimony under oath have suggested it was before January 2004.
Cosby has also argued that he was prejudiced by the 12-year delay in charging, as he has aged considerably, experienced memory loss and became blind.
The 2005 ‘Promise’
Early on in the criminal proceedings, Cosby argued that the prosecutors never should have filed charges, pursuant to a 2005 agreement between Cosby’s lawyer and then-District Attorney Bruce Castor Jr.
Castor later referred to the arrangement as a binding “promise” not to prosecute, in a two-day hearing on Cosby’s petition for writ of habeas corpus, through which he sought to have the charges against him dismissed. After that hearing, Judge Steven T. O’Neill, who oversaw the entire criminal case, denied Cosby’s petition. He wrote in his one-page order that a credibility determination was inherent in the court’s ruling.
Cosby appealed O’Neill’s decision at the Superior Court level, and asked for a stay of his preliminary hearing. When the Superior Court quashed Cosby’s appeal, he appealed to the Pennsylvania Supreme Court, but his petition for review was denied.
When Cosby’s preliminary hearing finally took place, prosecutors chose not to call Constand as a witness. They cited Commonwealth v. Ricker, a criminal case in which the Pennsylvania Superior Court ruled that prosecutors can prove a prima facie case at a preliminary hearing based on only hearsay.
Rickerwas on appeal to the Pennsylvania Supreme Court at the time, and is still pending in that court. It was argued in December.
Following the hearing, Cosby filed another habeas petition, arguing that he had a constitutional right to confront his accuser and was denied due process through the prosecution’s decision. O’Neill denied his petition, and both the Superior Court and Supreme Court rejected his argument as well.
The Other Accusers
Mass media coverage of Cosby’s alleged wrongdoing collided with the unique legal issues in his case as dozens of women came forward with allegations that Cosby had drugged and sexually assaulted them. As the number of women increased, prosecutors looked to present those accusations in court to bolster Constand’s story.
The District Attorney’s Office filed a motion to present evidence of Cosby’s “prior bad acts,” in the form of testimony from 13 other accusers. According to the motion, they had interviewed nearly 50 women before choosing that group.
But O’Neill allowed the prosecutors to call just one of those women. She alleged that Cosby sexually assaulted her in 1996, after she came to know him through her job at the William Morris Agency. She and her mother both testified at trial.
While just two of Cosby’s accusers, including Constand, told their stories on the witness stand, a number of others came to the trial each day in support of Constand. They sat together in the courtroom, wearing matching pink buttons that said “We Stand for Truth.”
Also attending the trial was lawyer Gloria Allred, who represents multiple Cosby accusers. After O’Neill declared a mistrial June 17 and Steele said he plans to retry the case, Allred said she hopes the court allows more accusers to testify this time around.