Consent amid pills to be a key part of Cosby sexual assault case
Maryclaire Dale, The Associated Press
Published Thursday, December 31, 2015 4:53AM EST
Last Updated Thursday, December 31, 2015 6:51PM EST
PHILADELPHIA -- Bill Cosby's lawyers went on the attack Thursday after the comedian's arrest, calling the sexual assault charges a flawed, politically motivated case that will not hold up in court.
They are expected to try to gut the prosecution's case or get it thrown out altogether by a variety of means, including preventing some of Cosby's numerous other accusers from taking the stand; blocking the use of testimony he gave in a decade-old lawsuit; and making an issue out of the 12 years it took to file charges.
"I have my doubts they get this to a jury anytime soon," said Los Angeles defence attorney Mark Geragos, noting the thorny legal issues and Cosby's advanced age (78) and infirmities, namely his badly deteriorating eyesight. Geragos, who is not involved in the case, added: "Generally, time is a friend of the defence."
A look at some of the likely battleground issues:
While Cosby is charged with drugging and sexually assaulting just one woman, Andrea Constand, legal experts predict a key pretrial battle over whether some of the dozens of other women who have accused the comedian of violating them can testify, too, to prove he had a "modus operandi."
"Prior bad acts" are sometimes allowed as evidence in criminal cases, but judges often take a dim view of such testimony because it can be so damaging. They typically require prosecutors to prove it is directly relevant.
"We don't want a jury to say, 'If he did it once before, he must have done it now,"' said Philadelphia attorney Jeffrey Lindy, who is unconnected to the Cosby case.
Lindy helped defend a Catholic Church official whose child-endangerment conviction for shielding a pedophile priest was overturned by an appeals court in December.
The reason: The prosecution put on weeks of testimony about the handling of 21 other priests under suspicion, even though the defendant wasn't charged in connection with any of them. The appeals court called it overkill -- in legal terms, more prejudicial than probative.
Cosby's arrest came after a blizzard of sensational allegations that destroyed his nice-guy image. The effects of the publicity are likely to be an extremely important consideration in picking a jury, said Hank Asbill, a criminal defence lawyer in Washington.
"People are going to have opinions about him one way or another," Asbill said, "based on his notoriety and his popularity as a celebrity. And people are also going to have opinions about the case."
On Thursday, Cosby lawyer Monique Pressley accused Montgomery County District Attorney-elect Kevin R. Steele of playing politics with Cosby and filing charges against him to make good on a campaign promise.
Steele, currently the No. 2 prosecutor in the DA's office, was elected district attorney in November in a hotly contested race in which the Cosby case played a central role. Steele ran ads attacking his opponent, former District Attorney Bruce Castor, for not prosecuting Cosby when Constand first went to police in 2005.
"What we have is not the effectuation of justice. What we have is the fulfilment of a campaign promise," Pressley said on ABC's "Good Morning America."
Steele was travelling and not available for comment.
COSBY'S CIVIL DEPOSITION
Weeks after the decision not to prosecute Cosby in 2005, Constand sued Cosby for sexual battery. He settled a year later, but only after he gave nearly 1,000 pages of deposition testimony. Among other things, Cosby admitted that he had repeatedly pursued sex with younger, often-struggling models and actresses and that he obtained quaaludes to give to some of them.
Over the summer, a federal judge unsealed excerpts of the deposition at the request of The Associated Press.
Cosby's civil lawyers have appealed the unsealing, and his criminal attorneys will no doubt fight to keep them out of the trial, perhaps by arguing that Cosby spoke only after being assured by prosecutors he would not be charged with a crime.
But criminal defence lawyer David Rudovsky, who teaches at the University of Pennsylvania, said: "What you say at a deposition, or what you say to anybody, can be used unless it's coerced or said without a Miranda warning."
THE 12-YEAR DELAY
Pennsylvania law gives prosecutors 12 years to file felony sexual assault charges. In the Cosby matter, prosecutors made it just under the wire, with Steele saying the unsealed documents and the parade of new accusers over the past decade helped him build a case.
But the defence "can still challenge the prosecutor waiting until the 11th hour. There are constitutional rights to a speedy trial," Geragos said.
Still, he predicted that will be an uphill battle for Cosby's attorneys.